Locked Up Far Away

Transfers of Detained Immigrants Interfere with Lawyer Access and Right to Challenge Deportation

I. Summary

I
lived in upstate New York for 10 years with my four children and my wife ... ICE
said I was deportable because of an old marijuana possession conviction where I
never served a day in jail, just paid a fine of $250 ... They took me to Varick
Street [detention center in New York City] for a few days and then sent me
straight to [detention in] New Mexico. In New York when I was detained, I was
about to get an attorney through one of the churches, but that went away once
they sent me here to New Mexico.... All my evidence and stuff that I need is
right there in New York. I’ve been trying to get all my case information
from New York ... writing to ICE to get my records. But they won’t give
me my records, they haven’t given me nothing. I’m just representing
myself with no evidence to present.[1]

Each year in the United States, several hundred thousand
non-citizens[2]
(378,582 in 2008) are arrested and detained by Immigration and Customs
Enforcement (ICE) officials. They are held in a vast network of more than 300
detention facilities, located in nearly every state in the country. Only a few
of these facilities are under the full operational control of ICE—the majority
are jails under the control of state and local governments that subcontract
with ICE to provide detention bed space.

Although non-citizens are often first detained in a location
near to their place of residence, for example, in New York or Los Angeles, they
are routinely transferred by ICE hundreds or thousands of miles away to remote
detention facilities in, for example, Arizona, Louisiana, or Texas. Detainees can
also cycle through several facilities in the same or nearby states. Previously
unavailable data obtained by Human Rights Watch show that over the 10 years
spanning 1999 to 2008, 1.4 million detainee transfers occurred. The large
numbers of transfers are due to ICE’s broad use of detention as a tool of
immigration control, especially after restrictive immigration laws were passed
in 2006, and the absence of effective policies and standards to prevent
unnecessary transfers.

Any governmental authority holding people in its custody,
particularly one responsible for detaining hundreds of thousands of people in
dozens of institutions, will at times need to transport them between
facilities. In state and federal prison systems, for example, inmate transfers
are relatively common, even required, in order to minimize overcrowding,
respond to medical needs, or properly house inmates according to their security
classifications. Transfers in state and federal prisons, however, are much
better regulated and rights-protective than transfers in the civil immigration
detention system where there are few, if any, checks. The difference in the
ways the US criminal justice and immigration systems treat transfers is doubly
troubling because immigration detainees, unlike prisoners, are technically not
being punished. But thus far ICE has rejected recommendations to place
enforceable constraints on its transfer power.

This report examines the scope and human rights impacts of
US immigration transfers. It draws on extensive, previously unpublished ICE
data Human Rights Watch obtained through a Freedom of Information Act request,
as well as scores of interviews with detainees, family members, advocates,
attorneys, and officials. As detailed below, we found that such transfers are
even more common than previously believed and are rapidly increasing in number,
more than doubling from 2003 (122,783) to 2007 (261,941) and likely exceeding
300,000 in 2008 once the final numbers are in. The impact on detainees and
their families is profound.

Transfers erect often insurmountable obstacles to
detainees’ access to counsel, the merits of their cases notwithstanding.
Transfers impede their rights to challenge their detention, lead to unfair
midstream changes in the interpretation of laws applied to their cases, and can
ultimately lead to wrongful deportations.

Transfers also take a huge personal toll on detainees and
their families, often including children. As one attorney who represents
immigration detainees explained:

The transfers are devastating—absolutely devastating.
[The detainees] are loaded onto a plane in the middle of the night. They have
no idea where they are, no idea what [US] state they are in. I cannot
overemphasize the psychological trauma to these people. What it does to their
family members cannot be fully captured either. I have taken calls from seriously
hysterical family members—incredibly traumatized people—sobbing on
the phone, crying out, “I don’t know where my son or husband
is!”[3]

Many detainee transfers are unnecessary and the harms
avoidable. ICE needs a transfer policy with greater clarity of purpose and
protections against abuse. As detailed in the recommendations section below,
better transfer standards can be developed with just a few simple reforms.

An agency charged with enforcing the laws of the United
States should not need to resort to a chaotic system of moving detainees around
the country in order to achieve efficiency. Immigrant detainees should not be
treated like so many boxes of goods—shipped to the location where it is
most convenient for ICE to store them. Instead, ICE should hold true to its
mission of enforcing the laws of the United States and allow reasonable and
rights-protective checks on its transfer power.

The Impact of Transfers on Detainees’ Rights

The current US approach to immigration detainee transfers
interferes with several important detainee rights. To understand the conditions
immigration detainees face, it is instructive to compare their situation to
that of federal and state prisoners.

In the US criminal justice system, pretrial detainees enjoy
the right, protected by the Sixth Amendment to the US Constitution, to face
trial in the jurisdiction in which their crimes allegedly occurred.[4]
Immigrant detainees enjoy no comparable right to face deportation proceedings
in the jurisdiction in which they are alleged to have violated immigration law,
and are routinely transferred far away from key witnesses and evidence in their
trials. In all but rare cases a transfer of a criminal inmate occurs once an
individual has been convicted and sentenced and is no longer in need of direct
access to his attorney during his initial criminal trial. Immigrant detainees
can be transferred away from their attorneys at any point in their immigration
proceedings, and often are. Finally, transferred criminal inmates can usually
be located through a state or federal prisoner locator system, which is
accessible to the public and in many cases is updated every 24 hours. There is
no similar publicly accessible immigrant detainee locator system, meaning that
detainees can be literally “lost” from their attorneys and family
members for days or even weeks after being transferred.

All immigrant detainees, however, have the right, protected
under US law as well as human rights law, to be represented in deportation and
related hearings by the attorney of their choice. Transfers of immigrant
detainees severely disrupt the attorney-client relationship because attorneys
are rarely, if ever, informed of their clients’ transfers. Attorneys with
decades of experience told us that they had not once received prior notice from
ICE of an impending transfer. ICE often relies on detainees themselves to
notify attorneys, but the transfers arise suddenly and detainees are routinely prevented
from or are otherwise unable to make the necessary call. As a result, attorneys
often spend days, even weeks tracking down the new location of their clients.
Once a transferred client is found, the challenges inherent in conducting legal
representation across thousands of miles can completely sever the
attorney-client relationship.

Even when an attorney is willing to attempt long distance
representation, the issue is entirely within the discretion of immigration
judges, whose varying rules about phone or video appearances can make it
impossible for attorneys to represent their clients. In other cases, detainees
must struggle to pay for their attorneys to fly to their new locations for
court dates, or search, usually in vain, for local counsel to represent them.
Transfers create such significant obstacles to existing attorney-client
relationships that ICE’s special advisor, Dora Schriro, recommended in
her October 2009 report that detainees who have retained counsel should not be
transferred unless there are exigent reasons.

Still, immigrants who have already retained an attorney prior
to transfer are the most fortunate. Detainees are often transferred hundreds or
thousands of miles away from their families and home communities before they
have been able to secure legal representation. Almost invariably, there are
fewer prospects for finding an attorney in the remote locations to which they
are transferred. It is therefore not surprising that in 2008, the most recent
year for which figures are available, 60 percent of non-citizens appeared in
immigration court without counsel.

Although most detained non-citizens have the right to a timely
“bond hearing”—a hearing examining the lawfulness of
detention (a right protected under US law as well as human rights
law)—our research shows that ICE’s policy of transferring detainees
without taking into account their scheduled bond hearings often seriously
delays those hearings. In addition, transferred detainees are often unable to
produce the kinds of witnesses (such as family members or employers) that are
necessary to obtain bond, which means that they usually remain in detention.

Once they are transferred, the vast majority of non-citizens
must go forward with their deportation cases in the new, post-transfer
location. Some may ask the court to change venue back to the pre-transfer
location, where evidence, witnesses, and their attorneys are more readily
accessible. Unfortunately, for a variety of reasons discussed in this report,
it is very difficult for a non-citizen detainee to win a change of venue
motion.

Transfer can also have a devastating impact on
detainees’ ability to defend against deportation, despite their right to
present a defense. Transfer often makes it impossible for non-citizens to
produce evidence or witnesses relevant to their defense. In addition, the
transfer of detainees often literally changes the law that is applied to them.
For example, the act of sending a detainee from one jurisdiction to another can
determine whether she may ask an immigration judge to allow her to remain in
the United States.

Transfer can pose unique problems for detainees who are
minor children, without a parent or custodian to offer them guidance and
protection. ICE is required to send these unaccompanied minors as soon as
possible to a specialist facility run by the Office of Refugee Resettlement
(ORR) that is the least restrictive, smallest, and most child-friendly facility
available. Placing children in these facilities is a laudable goal, and one
that protects many of their rights as children. Unfortunately, there are very
few ORR facilities in the United States. Therefore, children are often
transferred even further than their adult counterparts, away from attorneys
willing to represent them and from communities that might offer them support.
The delays and interference with counsel caused by these long-distance
transfers of children can cause them to lose out on important immigration
benefits available to them only as long as they are minors, such as qualifying
for Special Immigrant Juvenile Status, which would allow them to remain legally
in the United States.

Finally, the transfer of immigrants across long distances to
remote locations takes a heavy emotional toll on detainees and their loved
ones. Physical separation from family members when immigrants are detained in
remote locations impossible for their relatives to reach creates severe
emotional and psychological suffering.

New Data on Detainee Transfers

Given the serious rights violations that can occur, Human
Rights Watch is concerned by the widespread and increasing use of transfers by
ICE. Data obtained from ICE by Human Rights Watch for this report and analyzed
by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University
reveal that transfers have increased sharply in recent years: of the 1.4
million transfers that have occurred between 1999 and 2008, more than half (53
percent) took place in the last three of those 10 years.

The data show a clear link between ICE’s reliance on
subcontractors to house immigrant detainees and the burgeoning number of transfers.
The majority of detainees are held in numerous state and local jails and
prisons that ICE pays to provide bed space. However, whenever these state and
local facilities need to free up space for persons accused or convicted of
crimes, or whenever they decide housing ICE detainees is undesirable for
whatever reason, ICE must move detainees out. As a result, the vast majority of
transfers occur through such subcontracted facilities.

Although transfers occur into, out of, and within almost
every state in the country, the three states most likely to receive transfers
are Texas, California, and Louisiana. The numbers are so high in each of
Louisiana and Texas that the federal Court of Appeals for the Fifth Circuit
(which covers Louisiana, Mississippi, and Texas) is the jurisdiction that
receives the most transferred detainees. Transfers to states covered by the
Fifth Circuit are of particular interest to an assessment of the impact of
immigration transfers because the circuit court is widely known for decisions that
are hostile to the rights of non-citizens and because the states within its
jurisdiction collectively have the lowest ratio of immigration attorneys to
immigration detainees in the country.

While it is impossible to determine conclusively based on our
data whether there is a net inflow of transfers to the Fifth Circuit—and
we certainly do not conclude that it is intentional ICE policy to create such
an inflow—the data show a large disparity between transfers received in
(95,114) and originating from (13,031) the Fifth Circuit state of Louisiana. As
detailed below, a detainee whose deportation hearing might have been about to
be heard in another jurisdiction may well find out, after transfer to a
facility within the Fifth Circuit, that his or her chances of successfully
fighting deportation have just evaporated.

ICE Policy

As an agency responsible for the custody and care of
hundreds of thousands of people, it is clear that ICE will need to transfer
detainees. The question is whether all or most of the 1.4 million transfers
that have occurred over the past 10 years were truly necessary, especially in
light of how transfers interfere with immigrants’ rights to access
counsel and to fair immigration procedures.

Despite such problems, ICE has remained staunchly opposed to
limiting its transfer power. According to the agency, any such limits would
curtail its ability to make the best and most cost-effective use of the
detention beds it has access to across the country. In a time of fiscal
downturn in the United States such efficiency concerns are important, but they
should never come at the expense of basic human rights. This is especially true
for those detainees who have attorneys to consult, defenses to raise in their
deportation hearings, and witnesses and evidence to present at trial. Some
detainees may not have such issues at stake. But for those who do, the United
States government and its immigration enforcement agency should not be allowed
to act without restraint.

Due to changes in ICE leadership under the Obama
administration, there may be opportunities in the near term for ICE to reduce
its increasing reliance on transfers. In August 2009, ICE announced a policy
shift to

move away from our present decentralized, jail-oriented
approach to a system wholly designed for and based on ICE’s civil
detention authorities. The system will no longer rely primarily on excess
capacity in penal institutions. In the next three to five years, ICE will
design facilities located and operated for immigration detention purposes.[5]

As a part of this plan to create new detention facilities
solely for immigration purposes, ICE should strive to reduce transfers. The
agency should ensure that the new facilities are under its full operational
control and are located close to the places where the majority of detainees are
arrested. Agency regulations should be amended to require that the Notice to
Appear (NTA) (the document giving the government’s reasons for believing
an immigrant is deportable) is filed with the immigration court closest to the
location where the detainee is arrested. In addition, new guidelines should be
issued by ICE and the Executive Office for Immigration Review (EOIR) so that
detainee transfers occur only in instances in which they do not threaten basic
human rights. Once ICE’s transfer guidelines are developed, they should
be made a part of US federal regulations so that if the guidelines are
violated, they can be enforced in court. Finally, Congress should consider
making a simple amendment to immigration laws to place a reasonable check on
ICE’s transfer authority.

Transfers do not need to stop entirely in order for ICE to
respect detainees’ rights. They merely need to be reduced through the
establishment of enforceable guidelines, regulations, and reasonable
legislative restraints.

II.
Recommendations

To place reasonable checks on
ICE’s transfer authority:

The United States Congress
should amend the Immigration and Nationality Act to:

Require that the Notice to Appear be filed with the
immigration court nearest to the
location where the non-citizen is arrested and within 48 hours of his or her
arrest, or within 72 hours in exceptional or emergency cases; and/or

The assistant secretary
for ICE should:

Promulgate regulations requiring ICE detention
officers and trial attorneys to file the Notice to Appear with the immigration
court nearest to the location where the non-citizen is arrested and within 48
hours of his or her arrest, or within 72 hours in exceptional or emergency
cases.

Promulgate regulations prohibiting transfer until
after detainees have had a bond hearing.

To reduce transfers of
immigration detainees:

The assistant secretary
for ICE should:

Build new detention facilities or contract for new
detention bed space in locations that are close to where most immigration
arrests occur.

Ensure that new detention facilities are under
ICE’s full operational control, so that the agency is not obliged to
transfer detainees from sub-contracted local prisons or jails when the facility
so requests.

Require the use of alternatives to detention
whenever and wherever possible.

To address deprivation of
access to counsel caused by transfers:

The assistant secretary
for ICE should:

Build new detention facilities or contract for new
immigration detention bed space in locations where there is a significant
immigration bar or legal services community.

Revise the 2008 Performance Based National
Detention Standards (PBNDS) to require ICE/Detention and Removal Operations
(DRO) to refrain from transferring detainees who are represented by local
counsel, unless ICE/DRO determines that: (1) the transfer is necessary to
provide adequate medical or mental health care to the detainee, (2) the
detainee specifically requests such a transfer, (3) the transfer is necessary
to protect the safety and security of the detainee, detention personnel, or
other detainees located in the pre-transfer facility, or (4) the transfer is
necessary to comply with a change of venue ordered by the Executive Office for
Immigration Review.

Amend the “Detainee Transfer Checklist”
appended to the PBNDS to include a list of criteria that ICE/DRO must consider
in determining whether a detainee has a preexisting relationship with local
counsel, and require that ICE/DRO record one or more of the four reasons
enumerated above for transfer of a detainee with retained counsel and
communicate the reason(s) to that counsel.

Reinstate the prior transfer standard that required
notification to counsel “once the detainee is en route to the new
detention location,” and require that all such notifications are
completed within 24 hours of the time the detainee is placed in transit.

Collaborate with the Executive Office for
Immigration Review to pilot a project providing low-cost or pro bono legal
services to immigrants held in remote detention facilities.

The Executive Office
for Immigration Review should:

Issue guidance for immigration judges requiring
them to allow appearances by detainees’ counsel as well as detainees
themselves via video or telephone whenever a detainee has been transferred away
from local counsel, family members, community ties, or other key witnesses.

The assistant secretary
for ICE should:

Amend the Detainee Transfer Checklist appended to
the PBNDS to include a list of criteria that ICE/DRO must consider in order to
determine whether a detainee has received a bond hearing, or has been found
ineligible for such a hearing by an immigration judge, or has consented to
transfer without such a hearing.

Pursue placement of the detainee in alternative to
detention programs prior to transfer.

To reduce the interference
with detainees’ capacity to defend against removal caused by transfers:

The assistant secretary
for ICE should:

Revise the PBNDS to require ICE/DRO to refrain from
transferring detainees who have family members, community ties, or other key
witnesses present in the local area unless ICE/DRO determines that: (1) the
transfer is necessary to provide medical or mental health care to the detainee,
(2) the detainee specifically requests such a transfer, (3) the transfer is
necessary to protect the safety and security of the detainee, detention
personnel, or other detainees located in the pre-transfer facility, or (4) the
transfer is necessary to comply with a change of venue ordered by the Executive
Office for Immigration Review.

Amend the Detainee Transfer Checklist appended to
the PBNDS to include designation of one or more of the four reasons enumerated
above for transferring detainees away from family members, community ties, or
other key witnesses present in the local area.

The Executive Office
for Immigration Review should:

Issue guidance for immigration judges that strongly
discourages them from changing venue away from a location where the detainee
has counsel, family members, community ties, or other key witnesses, unless the
detainee so requests or consents, or unless other justifications exist for such
a motion apart from ICE agency convenience. Such guidance should also encourage
changes of venue to locations where detainee family members, community ties, or
other key witnesses are located.

Issue guidance for immigration judges that
prioritizes in-person testimony, but when such testimony is not possible
requires judges to allow video or telephonic appearances by family members and
other key witnesses. Any decision to disallow these types of appearances should
be noted on the record along with the reason for the decision.

Issue guidance requiring immigration judges
considering change of venue motions to weigh whether a requested change of
venue would result in a change in law that is unfavorable to the detainee.

To ensure that transfer of
detainees does not interfere with the ability of counsel and family members to
locate and communicate with detainees:

The assistant secretary
for ICE should:

Require ICE/DRO to develop a reliable tracking
system that enables prompt identification of the location where any detainee is
being held.

Require that local ICE field offices maintain
up-to-date information about the location of all detainees in their custody and
make that information readily available to family members and attorneys of
detainees who inquire about the location of a detainee.

Revise the PBNDS to provide that if a detainee who
has been transferred is unable to make a telephone call at his or her own
expense within 12 hours of arrival at the new location, the detainee shall be
permitted a single domestic telephone call at the federal government’s expense.

To address interference with counsel and other detrimental
legal outcomes caused by the transfers of unaccompanied minors:

The assistant secretary
for ICE, together with the ORR director, should:

Provide age-appropriate ORR facilities for all unaccompanied
minors near to their counsel or in locations where there is access to
counsel, and, in the case of unaccompanied minors who have resided in the
United States for longer than one year, their former place of residence in
the United States.

To improve agency
accountability and management practices as well as accurate accounting of
operational costs involved in transfers:

The assistant secretary
for ICE should:

Require detention operations personnel to promptly
enter the date of transfer, originating facility, receiving facility, reasons
for transfer, and counsel notification into the Deportable Alien Control
System, or any successor system used by ICE to track the location of detainees.

Include costs associated with inter-facility
transfers of detainees as a category distinct from transfers made to complete
removals from the US in annual financial reporting by the agency.

The Executive Office for
Immigration Review should:

Maintain statistics on the total number of motions
to change venue filed by the government versus those filed by non-citizens, and
the number granted in each category.

III.
Methodology

This report is based on 81 interviews conducted by Human
Rights Watch with non-citizen detainees in Texas, Arizona, and New Mexico;
detainees’ family members, immigrants’ rights advocates, and
attorneys located throughout the United States; and ICE officials located in
Washington, DC, Arizona, and Texas. Human Rights Watch also reviewed 158 pages
of correspondence between ICE and detainees, their family members, and their congressional
representatives, which were produced for Human Rights Watch by ICE in response
to our Freedom of Information Act (FOIA) request.

The data on transfers (hereinafter “transfers
dataset”) were obtained by Human Rights Watch from ICE on September 29,
2008, in response to a request we filed on February 27, 2008, under the Freedom
of Information Act.[6]
The numbers were analyzed by the Transactional Records Access Clearinghouse at
Syracuse University.

The files released by ICE contain basic information
concerning each exit of a detainee from a detention facility during the period
October 1, 1998, through mid-April 2008. This information includes the
nationality and gender of the detainee, the facility in which he or she had been
detained, the ICE regional hub (known as a “docket control office”
or “DCO”), and the dates of entry to and exit from this particular
facility, as well as the date on which the immigrant had first been detained. A
code also identified the exit reason such as “deported” or “removed,”
“voluntary departure,” or “transfer.” However, no
information concerning the reason for a transfer was provided.

The first step in TRAC’s research was to develop an
analysis database. Initially, this required processing the 68 separate data
files that had been released (each containing tens of thousands of records) and
combining them into a single database of 3,376,269 records for further
analysis. In addition, supplemental translation databases were prepared to map
each coded entry to its definition. Consistency checks were also run against
available published data. Finally, we checked each record for missing data and
for undefined codes to minimize data entry errors.

TRAC also gathered additional information to classify each
of the 1,524 detention facilities that appeared in the data. TRAC had
previously obtained information on some of the facilities through separate
research. For the remaining facilities, TRAC conducted telephone interviews and
sought out other publicly available sources identifying the nature of each
facility. Using this information each of the detention facilities was
classified into broad categories, including “Service Processing Centers”
(ICE owned and operated), “Intergovernmental Service Agreement facilities”
(state and local jails under contract with ICE), “private contract
detention facilities,” “federal Bureau of Prisons facilities”
(under contract with ICE), “Office of Refugee Resettlement facilities”
(under contract with ICE), and “Detention and Removal Operations juvenile
facilities” (ICE owned and operated). Based upon address, each detention
facility was also classified by state and by the federal court circuit in which
it was located.

Additional analysis variables were then added to the database.
For example, using the information on recorded dates, TRAC was able to compute
the length of stay in a facility (number of days) and the fiscal year in which
the transfer took place. Using this information along with the reasons a
detainee was released from (“exited”) a detention facility, TRAC
was able to classify records into those facilities where a detainee was placed
on the initial day of detention (“originating” facilities) versus
facilities to which the detainee was later transferred (“receiving”
facilities).

The data also reveal that often a chain of transfers
occurred. For example, records show that many immigrants were transferred to a
facility and then shortly thereafter transferred out of the facility to another
detention location. Unfortunately, it was not possible to match the transfers
concerning the same individual because the files for the most part did not
identify the particular detainee involved. As a result, while it was possible
to classify in aggregate the originating and receiving detention facilities, it
was not possible to directly connect the originating and receiving facility on
individual transfers since each record only identified the originating
detention facility and did not identify the particular facility to which a detainee
was transferred.

Once the analysis database was developed, the actual
analysis was carried out in two phases. The focus of the first phase was on the
detainee population and transfer trends. All records where the exit reason was
recorded as a transfer were included in this phase of the analysis. TRAC first
examined changes over time in the volume of transfers. Second, TRAC analyzed
national origin, gender, and other characteristics of the transferred detainee
population and assessed whether there were any significant changes in the
make-up of this population over time.

The second phase of the analysis focused upon the geographic
location and other characteristics of the detention facilities, for both the
originating facility and the receiving facility for the transfer. While it is
known that transfers occur for many reasons, there was no information on why an
individual transfer took place. For example, a transfer may occur to move a
detainee close to the deportation location just prior to the detainee’s
removal, or a detention facility may serve only as a convenient stopover
between the originating and the intended destination facility. At some
locations, ICE has specialized facilities that play a role in the intake
process so that on initial pickup an immigrant may pass through more than one
detention facility as part of the routine intake process.

While it would have been desirable to exclude these types of
transfers from the analysis since they were not the focus of the study, there
was no direct way to identify such records because the reason for the transfer
was not given. However, it was possible to identify transfers involving
“transient” stays—detention facilities in which the immigrant
did not remain overnight. As a partial control, the set of receiving detention
facilities analyzed in this phase of the research excluded any record where the
immigrant arrived and left on the same day (“zero-day stays”) since
these types of transfers clearly were outside the focus of this research. Similarly,
the set of originating facilities excluded transfers within the same DCO that
involved a zero-day stay to reduce double-counting of originating facilities
where the intake process during the same day involved multiple facilities.

The resulting sets of originating and receiving detention
facilities were then separately analyzed. For each set, facilities were ranked
by the volume of transfers. Counts and rankings for originating and receiving
detention facilities were also developed by type and by geographic location
(state as well as federal court circuit).

IV. The
Power to Apprehend, Detain, and Deport

Every day non-citizens in the United States are apprehended
by Immigration and Customs Enforcement and placed in a vast network of
detention centers that, during the most recent year for which figures are
available (2008), housed 378,582 persons.[7]
The majority of these non-citizen detainees are held in about 300 state and
local jails which, under contract with ICE, receive a daily fee for their bed
space. ICE also detains immigrants in nine service processing centers which it
operates, as well as in six privately-run contract detention facilities, 42
contracted juvenile facilities, and two family detention centers.

Non-citizens can be apprehended and detained by ICE for a
variety of reasons. Many are taken into custody because the legality of their
presence in the US is disputed and authorities want to hold them pending a
decision on their deportation (or “removal”)[8] from
the United States.[9]
Authorities also detain non-citizens arriving in the United States without
valid travel or identity documents,[10]
including those seeking asylum from persecution, who are detained until they
have had a “credible fear” interview with an asylum officer.[11] In
practice, many such asylum seekers are detained even after they have had a
successful credible fear interview and have applied for parole or release from
detention under conditions intended to guarantee their appearance at future
hearings.[12]
Finally, existing laws require authorities to detain most non-citizens who are
facing deportation after having served a criminal sentence, including those who
are legally in the country (for example, with lawful permanent resident
status).[13]

The power to issue a warrant to apprehend and detain any
non-citizen pending his or her deportation officially rests with the attorney general
of the United States.[14]
On a day-to-day basis, that power is exercised by immigration officers. An
immigration officer also may question a non-citizen as to his or her right to
remain inside the United States, and may take into custody without a warrant
any non-citizen believed to be in violation of any immigration law who is
“likely to escape before a warrant can be obtained for his arrest.”[15]
Finally, the attorney general may enter into a written agreement with local law
enforcement officials to arrest and detain non-citizens.[16] In
recent years, there has been a marked increase in these agreements with police
and sheriff’s departments around the country: In 2007, only eight law
enforcement agencies took part in agreements with ICE to enforce immigration
laws; now a total of 47 agencies in 17 states participate, with 90 more waiting
to sign up as of May 2008.[17]

Once a non-citizen has been detained, the immigration authorities
have 48 hours to make a determination as to whether he or she should remain in
custody. If the immigration authorities continue to believe that the
non-citizen is present in the United States in violation of immigration laws,
they must also decide whether to issue a Notice to Appear in that same 48-hour
window.[18]
The NTA is the document that states the agency’s factual basis for
believing an individual has violated the immigration laws, and in most cases,
why he or she should be removed from the United States. It is the linchpin for
any non-citizen wishing to defend against the government’s claim that he
or she should be deported from the United States.

While the NTA must ordinarily be given to the detainee
within 48 hours of arrest, that deadline is waived “in the event of an
emergency or other extraordinary circumstance in which case a determination
will be made within an additional reasonable period of time.”[19] This
extraordinary circumstance loophole was most infamously used by the US
government in its treatment of immigrant detainees after the September 11, 2001
attacks.[20]
It does not appear to be in use today. However, a similar policy remains in
effect due to a memo issued in 2004 by then Undersecretary of Border and
Transportation Security Asa Hutchinson, which extended the 48-hour deadline for
service of an NTA to 72 hours in case of emergency, but also stated that
prolonged detention without an NTA is permitted “[w]henever there is a
compelling law enforcement need including, but not limited to, an immigration
emergency resulting in the influx of large numbers of detained aliens that
overwhelms agency resources.”[21]

Under this broad guidance, there is no legally enforceable
deadline by which the NTA must be served on the detained immigrant. The lack of
a deadline is illustrated by the “many detainees identified by NGOs and
attorneys who are sitting in detention for days, weeks, and sometimes months at
a time without having received an NTA.”[22]

There is also no deadline for ICE to file the NTA with the
immigration court. This absence of a filing deadline is significant because it
is only after this filing occurs that the immigration court has jurisdiction
over the case. In other words, it is only after the government files the NTA
that the place or “venue” for the deportation hearings is set.[23] For
example, if an immigrant is taken into custody in Pennsylvania and held there
for several weeks before an NTA is filed with the immigration court, and then
ICE chooses to transfer him to a detention center in Texas and files an NTA
there, his entire legal case has been transferred to Texas.

The fact that the government determines where a particular
immigrant’s case will be heard by deciding when and where to file the NTA
(for example, waiting until after a transfer has occurred) places a great deal
of power in the government’s hands. The power that the government has in
determining venue is significant because sweeping changes to US immigration law
passed by Congress in 1996 made many more non-citizens subject to deportation,
and made it much more difficult for them to defend against their deportation.[24]

The United States Congress should amend the immigration
laws, or ICE should issue regulations requiring the agency to file the NTA with
the immigration court nearest to the place of arrest and within 48 hours of
taking a non-citizen into custody, or within 72 hours in exceptional or
emergency cases. These relatively simple legislative or regulatory fixes would
provide a measure of necessary control over transfers and enhance fairness in
immigration proceedings.

The
determining factor in deciding whether or not to transfer a detainee is whether
the transfer is required for [ICE’s] operational needs.[25]

Immigration Transfers Compared with Criminal
Transfers

Transfers should be expected in any large,
multi-institutional system of incarceration. The fact that they occur in ICE
facilities is not surprising, nor would it be a cause for alarm if reasonable
limits were in place. If the agency worked to emulate best practices on
transfers set by state and federal prison systems, it would reduce the chaos
and limit harmful rights abuses. Instead, ICE claims an almost unfettered power
to transfer detainees at will, resulting in a disorderly system of detainee
musical chairs that often violates non-citizens’ rights.

While some detainees are held in the ICE facility or
contract facility closest to the place where they are taken into custody, ICE
claims the legal authority to transfer immigrants to detention anywhere in the
country—from the Dale Correctional Facility in Vermont, to Otero Service
Processing Center in New Mexico, and from the Northwest Detention Facility in
Tacoma, Washington, to the Oakdale Federal Detention Center in Louisiana. ICE
claims that its authority to transfer detained immigrants is contained in section
241 of the Immigration and Nationality Act, which states:

The Attorney General shall arrange for appropriate places
of detention for aliens detained pending removal or a decision on removal. When
United States Government facilities are unavailable or facilities adapted or
suitably located for detention are unavailable for rental, the Attorney General
may expend ... amounts necessary to acquire land and to acquire, build,
remodel, repair, and operate facilities (including living quarters for
immigration officers if not otherwise available) necessary for detention.[26]

This language, which focuses on ICE’s authority to
construct detention centers (“more of a bricks and mortar
orientation”[27]),
does not clearly address ICE’s transfer power. Nevertheless, the
provision has been cited by courts as the source of that power, and the interpretation
has gone largely unchallenged.[28]
The agency claims that “[t]he INA contains no language limiting
ICE’s ability to move detainees from one facility to another.”[29]
Courts have tended to agree, responding to concerns expressed by detainees
about long-distance transfers with relative indifference.[30]

It is hardly surprising that ICE, believing it has limitless
transfer powers, pays little attention to a non-citizen’s prior place of
residence when deciding where to transfer him or her. Former Assistant
Secretary Julie Myers repeatedly emphasized that ICE maintains the discretion
to detain people wherever there is bed space.[31]
As a result, the government reports publicly that “[d]etainees are often
transferred from one facility to another.”[32]
Immigrants are treated like so many boxes of goods—shipped to the
warehouse with the cheapest and largest amount of space available to store
them. One ICE official told Human Rights Watch, “we transfer where beds
are available. It’s out of operational necessity.”[33] A
report released in October 2009 by Dr. Dora Schriro, special advisor on ICE detention
and removal, stated:

Although the majority of arrestees are placed in facilities
in the field office where they are arrested, significant detention shortages
exist in California and the Mid-Atlantic and Northeast states. When this
occurs, arrestees are transferred to areas where there are surplus beds.[34]

In discussions with Human Rights Watch, ICE has claimed that
the frequency of detainee transfers and its inability to limit their use is
partly related to its arrangements with Intergovernmental Service Agreement
facilities (IGSAs), which are state and local jails that contract with ICE to
hold detainees. In the case of detainees in the custody of one of these
facilities, an ICE official told Human Rights Watch,

They can pick up the phone and say “I want this guy
out of here by the end of the day.” We can’t make the facility keep
the person, so we have to transfer. We don’t transfer as a punitive
measure, we’re not out to get them ... but when a facility requests it,
we have to move the detainee out.[35]

Data analysis conducted for this report confirms ICE’s
explanation: the majority of detainee transfers originate from the patchwork of
local prisons and jails operating under IGSA contracts with ICE. ICE’s
haphazard system of placing detainees in a variety of facilities, many of which
it has very little control over, helps to explain why its transfer system is
equally haphazard.

ICE’s chaotic transfer system stands in marked
contrast to operational standards used in state and federal prison systems.
Although immigration detainees are not technically being punished, transfers of
criminal inmates held in state and federal jails and prisons are more closely
regulated than transfers of immigrant detainees held in ICE facilities.

Some of the limits on transfers in the criminal system can
be attributed to the Sixth Amendment to the US Constitution,[36]
which provides criminal defendants the right to face trial in the jurisdiction
in which their crimes are alleged to have occurred. As a result, nearly all
criminal defendants are held near the location of their trial, and cannot be
transferred while court proceedings are ongoing. The federal Bureau of
Prisons’ (BOP) inmate transfer protocol makes explicit mention of the
need to coordinate with the federal court system before transfers are
implemented. It contemplates that even after the trial is over, criminal
defendants may need to be “retained at, or transferred to, a place of
confinement near the place of trial or the court of appeals, for a period
reasonably necessary to permit the defendant to assist in the preparation of
his or her appeal.”[37]
The protocol continues:

Ordinarily, complicated jurisdictional or legal problems
should be resolved before transfer. Ordinarily, the sending Case Management
Coordinator will determine if an inmate has legal action pending in the
district in which confined. If so, the individual should not be transferred
without prior consultation.[38]

Jeanne Woodford, former director of the California Department
of Corrections and former warden at California’s San Quentin State
Prison, explains that in California’s prison system:

During trial, most inmates have court holds on them. You
cannot transfer an inmate who has a court hold on him or her. The prosecuting
authority will come to pick the inmate up for trial.... There should be court
holds in the immigration system. It really is very unfair to start a court case
in New Jersey and then transfer the inmate to California.[39]

However, there is no system of “court holds” in
the immigration system, and the prosecuting authority—the federal
government—is of the view that immigrants can be detained anywhere in the
United States. In addition, immigrant detainees enjoy no right to face
deportation proceedings in the state or locality in which their immigration law
violation allegedly occurred. Therefore, as discussed later in this report, immigrant
detainees are routinely transferred far away from their attorneys, key
witnesses, and evidence in their trials.

Transfers are common in the criminal context once court
proceedings have ended, but even then, transfers are often regulated by policy.
Acceptable reasons for transfers in the federal prison system arise when a
particular inmate needs to be incarcerated at a higher or lower security level,
is nearing his or her release date and should be transferred “within 500
miles of his or her release residence,”[40]
has medical or psychiatric needs that cannot be addressed at the current
institution, needs to participate in a program not offered at the current
institution, or needs to be sent “temporarily” to another facility
for security reasons (often caused by overcrowding).[41]

Similarly, Jeanne Woodford believes that some transfers in
the criminal system are appropriate and necessary

[t]o get people access to facilities that can meet their
needs—be they mental health, drug treatment, educational, or vocational
training. It’s appropriate to transfer people for medical and mental
health needs. It’s often too costly to provide for intensive medical
needs in each and every facility and it is better to address some of these
needs in one place. Of course, transfers should occur only because the medical
treatment cannot be accommodated in the original facility.[42]

Although access to medical care is one of ICE’s stated
rationales for detainee transfers, none of the detainees interviewed by Human
Rights Watch for this report had been transferred for medical reasons.
Similarly, none of the attorneys interviewed for this report recalled ever
representing a client who had been transferred to meet his or her medical
needs. Indeed, research by our organization and others has documented serious
problems with discontinuity in detainees’ medical care due to medications
and records failing to follow when a detainee is transferred between
facilities. ICE sends only a summary of a detainee’s medical records when
sending him or her to one of the state and county jails where ICE rents bed
space.[43]

Finally, criminal systems track transfers in computerized
databases with much more rigor than ICE. For example, the BOP transfer protocol
requires that the reason for transfer and whether or not an inmate is eligible
for a parole hearing must be entered into the central computer and approved by
superiors prior to any transfer.[44]
Most of the information relating to ICE transfers is not uploaded into a
centralized system; it is sent with the detainee in hard copy on a series of
forms and files. Moreover, the reasons for transfer or eligibility for bond are
never tracked.[45]
In addition, in marked contrast to ICE’s policies, most prison inmates
can be easily located through a state or federal prisoner location system,
which is accessible to the public and in many cases is updated every 24 hours.[46]
There is no similar publicly accessible immigrant detainee locator system
managed by ICE, meaning that detainees can be literally “lost” from
their attorneys and family members for days or even weeks after a transfer. The
lack of such a locator system prompted ICE Special Advisor Schriro to recommend
in her October 2009 report that “ICE should create and maintain a current
detainee locator system on the ICE website.”[47]

While it is unrealistic for ICE to completely cease
transferring detainees, implementing procedures and controls on transfers akin
to those already in place in the criminal context would go a long way toward
protecting detainees’ rights. Unfortunately, the agency has refused to do
anything more than adopt a vaguely worded and unenforceable set of standards to
govern its transfer power.

ICE’s Internal Transfer Standards

In 2000, the Immigration and Naturalization Service
(ICE’s predecessor) adopted a set of detention standards to provide
minimum safeguards for the fair and humane treatment of detainees.[48] These
standards were subsequently revised in June 2004[49] and
again by ICE in December 2008 after a lengthy review process that included
input from nongovernmental organizations.[50]
The detention standards are merely internal agency guidelines and do not have
the binding authority of federal regulations or statutory law.

Three subsets of those standards are most important from a
rights perspective: first, the standards on permissible reasons for transfer;
second, the standards on when and how detainees are to be informed that they
are being transferred; and third, the standards on when and how
detainees’ attorneys are to be informed that their clients are being
transferred.

The 2004 standards provided a vague set of reasons for which
ICE may transfer detainees, including medical needs, change of venue,
recreation, security, and “other needs of ICE,” which included
“various reasons, such as to eliminate overcrowding or to meet special
detainee needs, etc.”[51]
Nowhere was ICE required to indicate which of these amorphous reasons was
motivating a particular transfer decision.

In addition, when a detainee was being transferred in
accordance with the 2004 standards, he or she was informed only
“immediately prior” to leaving the pre-transfer facility and would
“normally not be permitted to make or receive any telephone calls.”[52]Finally, the detainee’s attorney was notified of the transfer only
once the detainee was “en route” to the new detention facility.[53]

Because Human Rights Watch believed these vague standards
permitted human rights violations to occur, we were pleased to learn that ICE
and its department of Detention and Removal Operations were reviewing them and
would be issuing a new set of standards in 2008. We brought our concerns to the
attention of ICE in a series of letters and through participation in several
in-person meetings with senior ICE officials and colleague organizations.[54]
Unfortunately, the revised transfer standards issued in December 2008 were
almost no improvement over the old.

Once again, although this time even more explicitly, the
agency states that its own operational concerns must dictate the transfer
decision: “[t]he determining factor in deciding whether or not to
transfer a detainee is whether the transfer is required for operational needs,
for example, to eliminate overcrowding.”[55]
The standards go on to state that detainees may be transferred after taking
into account security, legal representation, change of venue, and medical
needs.[56]

While operational needs are the “determining
factor” and therefore override all other considerations, the inclusion of
legal representation as a factor to take into account provides some improvement
over the 2004 standards:

ICE/DRO will consider whether the detainee is represented
by legal counsel. In such cases, ICE/DRO shall consider alternatives to
transfer, especially when the detainee is represented by local, legal counsel
and where immigration court proceedings are ongoing.[57]

In addition, the 2008 standards state that “[w]hile
ICE/DRO transfers detainees from one facility to another for a variety of
reasons, a transfer of a detainee shall never be retaliatory.”[58]

With regard to informing detainees of an impending transfer,
the 2008 standards are virtually identical to the 2004 standards, stating that a
“detainee shall not be informed of the transfer until immediately prior
to leaving the facility.” After being informed, “the detainee shall
normally not be permitted to make or receive any telephone calls.”[59]

Finally, the 2008 standards provide attorneys even less
notice of their clients’ transfers than the 2004 standards, stating that
“the attorney shall be notified of the transfer once the detainee has
arrived at the new detention location.”[60] By
contrast, the 2004 standards provided that attorneys should be informed once
their client was “en route” to the new location. In reality, this
distinction has little effect on a detainee’s rights, since in either
case the attorney has no chance to petition a court to stop the transfer.[61]

Not only are the 2008 standards unacceptably vague, they are
also not codified as federal regulations, and cannot be enforced in court. The
Department of Homeland Security (DHS) has refused to turn the standards into
regulations, saying that the 2008 standards are preferable to enforceable
regulations because they provide the “necessary flexibility to enforce
standards that ensure proper conditions of confinement.”[62]

VI. New Data
on Frequency and Patterns of Detainee Transfers

In recent years, Human Rights Watch has received numerous
anecdotal accounts from immigration attorneys across the country alleging that
ICE was transferring immigrant detainees with increasing frequency. However,
there were no publicly available data against which we could check these
claims. Therefore, in February 2008 we submitted a request to ICE under the
Freedom of Information Act seeking detailed information about the
agency’s transfer practices since 1998. In September 2008 we received a
response.[63]
While the agency did not disclose much of the information we had requested,
what it did disclose allowed us to analyze quantitatively what we had heard
about anecdotally for years.

Trends in the Frequencies and Types of Detainee
Transfer

The data reveal that between 1999 and 2008, ICE made
1,397,339 transfers of immigrants between detention facilities. Over those 10 years,
the use of transfers has been on the rise, as Table 1 and Figure A show. In
2007, 261,941 transfers occurred, more than doubling the number of transfers
(122,783) that occurred just four years earlier in 2003. Since the data
produced by ICE for Human Rights Watch record each transfer movement but are
not linked to individual detainees, and since our qualitative research has
shown that some individual detainees are transferred multiple times, the number
of detainees who have experienced transfer is less than the total number of
transfer movements.

Figure A: Number of Transfers by Fiscal Year

Source: See Table 1, above.

*Note: Estimate based on transfers continuing at the same
volume for all of fiscal 2008 as was observed until April (179,785). This
estimate was calculated using a conservative straight-line projection, as
opposed to accounting for any exponential growth in transfers.

During the 10 years for which we obtained data, the 20
nationalities most often transferred are shown in Table 2, below. For any given
year between 1999 and 2008, these nationalities tended to be the most
frequently transferred. Table 3 shows the proportional representation for each
of the top 10 nationalities across the 10 years studied.

Table 3: Trends in Nationality of Transferred Detainees, 1999-2008

Nationality

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Mexico

41%

41%

38%

41%

39%

36%

35%

36%

36%

40%

Guatemala

6%

7%

6%

8%

9%

10%

13%

14%

14%

14%

Honduras

7%

7%

7%

7%

9%

8%

13%

15%

14%

12%

El Salvador

8%

9%

8%

7%

8%

8%

9%

12%

15%

12%

Dominican Republic

3%

3%

3%

3%

3%

3%

3%

2%

2%

2%

China

5%

5%

4%

4%

2%

3%

2%

2%

1%

1%

Cuba

5%

4%

5%

4%

3%

3%

1%

1%

1%

1%

Brazil

0%

0%

1%

1%

2%

5%

5%

1%

2%

1%

Jamaica

3%

2%

2%

2%

2%

2%

1%

1%

1%

1%

Colombia

1%

1%

3%

2%

2%

2%

1%

1%

1%

1%

Source: See Table 1, above.

We were interested in whether particular nationalities were
transferred more or less frequently than their proportion of the detained
population would suggest. As illustrated by Table 4, during 2008, nationals
from Mexico, El Salvador, Guatemala, and Honduras made up larger proportions of
the transferred detainee population than their proportional time spent in
detention would indicate. Mexicans had the largest disparity (8 percent)
between their percentage of total transfers and percentage of bed days in
detention.

As with nationality, the gender of persons transferred also
remained relatively constant between 1999 and 2008. For any given year, female
detainees made up between 9 and 11 percent of the persons transferred,
averaging 10 percent across the 10 years studied, as shown in Table 5, below.

Table 5: Gender of Transferred Detainees,
1999-2008

Gender

1999-2008

All

1,397,339

Male

1,254,698

Female

142,459

Unknown

182

Source: See Table 1, above.

Geographic Patterns in Detainee Transfers

To examine the geographic patterns in detainee transfers,
records were classified into two groups—those pertaining to detention
facilities originating transfers and those pertaining to facilities receiving
transfers. Details on the classification process are provided in the
methodology section of this report.

Limitations in the information ICE released did not permit
analysis of flows of detainees between specific pairs of facilities. This was
because while a transfer record showed the detention facility a particular
detainee originated from, it did not identify the facility to which he or she
was transferred. And because the identity of the detainee was not provided, it
was not possible to match up records on the originating and receiving detention
facilities for a given transfer. In addition, it is known that a significant
portion of transfers take place between facilities in the same state. For these
reasons, we cannot assess how many transfers originating in a particular state
actually left that state, nor can we assess how many transfers received in a
state began from a location outside of that state.

Over the 10 years studied (1999-2008), the following two
tables show the states in which detainee transfers originated (Table 6), and
the states that received transferred detainees (Table 7). These tables show
that there is a great deal of transfer traffic originating in and going to
Arizona, California, Florida, Pennsylvania, and Texas. However, Louisiana is
far more likely to receive transferred detainees than it is to originate
transfers, and California, New Jersey, New York, and Oregon are more likely to
originate transfers than they are to receive transferred detainees.

Table 6: States Originating Transfers, 1999-2008

State

Detainee Transfers Originated

Rank

State

Detainee Transfers Originated

Rank

TX

168,106

1

OH

5,114

28

CA

153,320

2

KS

4,764

29

AZ

106,416

3

NE

4,622

30

FL

45,572

4

AR

4,003

31

PA

26,082

5

MN

3,113

32

NY

24,224

6

NM

3,007

33

OR

19,576

7

IN

2,729

34

NJ

18,503

8

WI

2,667

35

NC

16,602

9

SC

2,650

36

IL

13,621

10

OK

2,630

37

LA

13,031

11

RI

2,505

38

VA

12,672

12

MT

2,492

39

CO

11,327

13

SD

2,208

40

TN

11,321

14

NH

1,793

41

GA

10,600

15

VI

1,787

42

WA

10,137

16

CT

1,685

43

MO

9,810

17

ME

1,546

44

MI

9,551

18

VT

1,349

45

UT

9,100

19

AK

1,326

46

PR

7,578

20

WV

1,249

47

KY

7,243

21

WY

1,148

48

MD

6,643

22

ND

1,048

49

MA

6,523

23

MS

799

50

AL

6,517

24

HI

539

51

ID

5,974

25

GU

69

52

NV

5,626

26

DE

10

53

IA

5,394

27

DC

5

54

Source: See Table 1, above.

Table 7: States Receiving Transfers,
1999-2008

State

Detainee Transfers Received

Rank

State

Detainee Transfers Received

Rank

TX

166,628

1

ID

5,313

28

CA

99,556

2

IA

5,026

29

LA

95,114

3

NC

4,175

30

AZ

85,551

4

UT

3,619

31

PA

43,598

5

OK

2,974

32

FL

42,319

6

AR

2,082

33

IL

29,505

7

CT

2,062

34

GA

25,929

8

RI

1,869

35

WA

17,714

9

KY

1,757

36

AL

16,858

10

IN

951

37

CO

16,567

11

ME

685

38

VA

15,317

12

MT

673

39

MI

14,173

13

SD

531

40

NY

11,510

14

NH

518

41

NJ

9,975

15

SC

488

42

NM

9,925

16

ND

422

43

OR

9,503

17

NV

413

44

WI

9,223

18

VT

242

45

MD

8,570

19

MS

217

46

MA

8,240

20

AK

136

47

MO

8,134

21

WY

58

48

PR

7,722

22

GU

34

49

TN

7,650

23

WV

31

50

NE

7,169

24

DE

23

51

MN

6,979

25

HI

20

52

KS

6,941

26

DC

16

53

OH

5,870

27

VI

3

54

Source: See Table 1 above.

Tables 8 and 9 below show that the facility most likely to
originate transfers is the Florence Staging Facility in Arizona, while the
facility most likely to receive transfers is the Mira Loma Detention Center in
California. The tables also show that certain facilities, such as Laredo
Contract Detention Facility and Port Isabel SPC in Texas, frequently originate
transfers, but are not in the top 20 receiving facilities, while Eloy Federal
Contract Facility in Arizona and Pine Prairie Correctional Center in Louisiana
frequently receive transfers but are not in the top 20 originating facilities.

Table 8: Top Facilities Originating
Transfers, 1999-2008

Facility

Number

Rank

Florence Staging Facility (AZ)

63,288

1

Los Cust Case (CA)*

52,274

2

Laredo Contract Det. Fac. (TX)

46,602

3

Port Isabel SPC (TX)

31,112

4

Harlingen Staging Facility (TX)

27,690

5

Mira Loma Detention Center (CA)

20,823

6

Krome North SPC (FL)

17,210

7

Corrections Corporation of America (CCA)—San Diego
(CA)

16,041

8

CCA, Florence Correctional Center (AZ)

14,218

9

El Centro SPC (CA)

13,705

10

Florence SPC (AZ)

13,610

11

Varick Street SPC (NY)

11,991

12

Mecklenburg (NC) County Jail (NC)

10,496

13

San Pedro SPC (CA)

9,346

14

Kern County Jail (Lerdo) (CA)

9,291

15

York County Jail (PA)

8,091

16

El Paso SPC (TX)

7,343

17

Orleans Parish Sheriff (LA)

6,124

18

Tucson INS Hold Room (AZ)

6,106

19

Willacy County Detention Center (TX)

4,767

20

Source: see Table 1, above.

*Note: While the codebook provided to Human Rights Watch
does not clarify what this facility code refers to, and TRAC was unable to
clarify through its own research, we hypothesize that it might refer to
individuals held in the custody of the Los Angeles Sheriff’s Department.

Table 9: Top Facilities Receiving Transfers, 1999-2008

Facility

Number

Rank

Mira Loma Detention Center (CA)

30,987

1

York County Jail (PA)

27,728

2

Eloy Federal Contract Facility (AZ)

27,674

3

Florence Staging Facility (AZ)

26,789

4

Pine Prairie Correctional Center (LA)

26,268

5

Tensas Parish Detention Center (LA)

26,205

6

South Texas Detention Complex (TX)

25,375

7

San Pedro SPC (CA)

24,266

8

Houston Contract Detention Facility (TX)

21,583

9

Willacy County Detention Center (TX)

19,528

10

Oakdale Federal Detention Center (LA)

16,287

11

Florence SPC (AZ)

15,796

12

Denver Contract Detention Facility (CO)

14,202

13

Stewart Detention Center (GA)

13,358

14

Etowah County Jail (AL)

12,106

15

Los Cust Case (CA)*

11,976

16

Port Isabel SPC (TX)

11,014

17

Krome North SPC (FL)

10,868

18

Bradenton Detention Center (FL)

9,401

19

Tri-County Jail (IL)

8,090

20

Source: see Table 1, above.

*Note: For a description of this code, see Table 8, above.

There are also trends in the types of facilities originating
and receiving transfers. The majority of detainees are held in numerous state
and local jails and prisons that ICE pays to provide bed space under Intergovernmental
Service Agreements (IGSAs). Table 10, below, shows that IGSAs originate and
receive by far the most transferred detainees. This finding is not surprising
because ICE must move detainees out whenever state and local subcontractors need
to free up space for persons accused or convicted of crimes, or whenever they
decide housing ICE detainees is undesirable for whatever reason.

Since transfers between facilities often occur across large
distances, they can have the effect of altering the law applied to a
detainee’s case, which is determined by the federal circuit court of
appeals with jurisdiction over the facility where the detainee is housed. The
following table shows the federal circuits with jurisdiction over the detention
centers most likely to originate and receive detainee transfers. As Table 11
shows, facilities within the Ninth Circuit are the most likely to originate
transfers, although facilities within the Ninth Circuit also receive a very
large number of transferred detainees. Facilities within the Eleventh Circuit
are more likely to receive detainees than they are to originate transfers,
while facilities within the Fourth, Sixth, and Second Circuits are more likely
to originate detainee transfers than they are to receive them.

Table 11 also shows that detention facilities within the Fifth
Circuit (a federal circuit known for legal precedent hostile to the rights of
immigrants)[64]
are most likely to receive transfers, although facilities located in the Fifth
Circuit also originate a large number of transfers. While it is impossible to determine
if there is a net inflow of transfers to the Fifth Circuit, our interviews tend
to indicate that a number of detainees from other jurisdictions end up there.
Moreover, the data show a large disparity between transfers received in (95,114)
and originating from (13,031) Louisiana. Therefore, while this report does not
conclude that there is an intentional ICE policy of transferring detainees to
the Fifth Circuit, it appears that for at least one of the three states within
the Fifth Circuit’s jurisdiction, there is a significant inflow of detainees
from elsewhere.

Transfers can also have a serious impact upon
detainees’ access to counsel. As Table 12 shows, in many cases detainees
are transferred to circuits with relatively few immigration attorneys. In order
to obtain a rough idea of the number of immigration attorneys in a particular
circuit, we obtained the number of members of the American Immigration Lawyers
Association (AILA) by state.[65]
Since not all immigration attorneys are members of AILA, and not every member
of AILA is a practicing immigration attorney, these numbers can only provide a
rough indication of the distribution of immigration attorneys in the various
circuits. Table 12 shows that the circuit most likely to receive detainees, the
Fifth Circuit, has the worst (highest) detainee/attorney ratios; whereas the
circuits least likely to receive detainees—the Second and the DC Circuits—have
the best (lowest) detainee/attorney ratios.

Finally, in the course of the 10 years studied, 19,384
transfers occurred originating from and going to detention facilities
specifically set up to house juveniles. As Table 13 illustrates, certain
juvenile detention facilities experience the bulk of transfer traffic: the
largest numbers of juvenile detainees are transferred from and to Hutto[66] and
IES in Texas, as well as to and from Southwest Key Juvenile Shelter in Arizona,
and Barrett Honor Camp in California.

Table 13: Transfer Activity at Juvenile
Detention Centers 1999-2008

Facility

State

Total Transfer Activity

Hutto CCA

TX

2,722

International Emergency Shelter (IES)

TX

2,242

Southwest Key Juvenile Facility

AZ

1,975

Barrett Honor Camp

CA

1,955

Juvenile Facility (Chicago)

IL

1,374

Southwest Key Juvenile Facility

TX

1,046

Boystown

FL

932

Catholic Charities (Houston)

TX

569

Casa San Juan

CA

540

Berks County Family Shelter

PA

523

Southwest Key Juvenile Facility

CA

500

Gila County Juvenile Detention Center

AZ

419

Berks County Juvenile

PA

400

Southwest Key Juvenile Facility (Houston)

TX

391

Los Padrinos Juvenile Hall

CA

385

Liberty City Juvenile Detention Center

TX

378

Southwest Initiatives Group, LLC

TX

334

Southwest Youth Village

IN

251

Berks County Secured Juvenile

PA

173

Corpus Christi Facility

TX

143

Southwest Key Juvenile (San Jose)

CA

129

Northern Oregon Juvenile Detention

OR

125

Alternative House

TX

118

All

19,358

Source: See table 1, above.

Costs of Transfer

ICE provides no publicly available analysis of the savings or
costs associated with transfers. It also does not provide information on the
rationales for transfers in particular cases, which might help the agency and
others to better understand the savings or costs associated with its practices.
For example, although none of the detainees interviewed for this report had
been transferred for medical reasons, it is certainly the case that some
percentage of transfers are completed in order to provide immigrant detainees
with necessary medical care, and that providing such care prevents illness,
loss of life, and costly lawsuits. However, there is no way to estimate these
savings since the agency does not make public, or even record in a centralized
database, the reasons for detainee transfers. Even if one accepts the notion
that transfers for medical care provide cost savings to the agency, it is also
true that transfers for medical care are not adequately addressing detainee
medical needs: ICE’s failure to care for the medical needs of non-citizen
detainees (resulting in deaths in several cases) has been the subject of
numerous lawsuits, prominent newspaper stories, and congressional action.[67]

We have no independent way of estimating the costs
associated with transfers, although we can assume that in addition to the costs
of transporting detainees by plane or bus, ICE incurs additional administrative
costs, such as personnel time spent on paperwork or other administrative tasks,
costs of additional court time or court delays caused by transfers, costs
associated with unnecessary transfers of persons who are found to be eligible
for bond and therefore are needlessly detained, or costs associated with
duplicative medical screenings or tests.

Without better public information on ICE’s operational
budget related to transfers, it is impossible to conclude whether transfers
result in net costs or savings for the agency. Nevertheless, our research for
this report allows us to conclude that transfers cost certain detainees a great
deal in the form of human rights violations. The following sections describe
these violations.

VII. Deprivation of Access to a Lawyer

The Importance of an Immigration Attorney

For any detained non-citizen facing deportation from the
United States, the importance of legal counsel cannot be overstated. As early
as 1931, a national commission charged with studying US immigration policy
recognized that in “many cases” a detainee with counsel would be
able to prevent a deportation “which would have been an injustice but
which the alien herself would have been powerless to stop.”[68]
Since 1931, immigration law has become only more complex and its procedures
more difficult for immigrants to navigate without the aid of legal counsel.[69]
Nevertheless, as immigration proceedings are civil and not criminal in nature,
non-citizens have no right to court-appointed attorneys and must secure legal
counsel at their own expense.

Often, it is only an immigration attorney who can tackle the
complex legal questions relevant to whether a particular immigrant will be
deported from the United States. These questions include, for example, whether
an individual’s criminal conviction fits the definitions of deportable
offenses in immigration law, whether an immigrant is dangerous or a flight
risk, whether the individual has fled persecution in his or her home country,
whether a particular non-citizen can marshal enough evidence to prove his
“good moral character,” or whether the law on any of these issues
applies retroactively. These are just a sampling of the numerous issues that immigration
attorneys must address when representing clients facing deportation.

In fact, “immigration laws have been termed second
only to the Internal Revenue Code [tax law] in complexity ... [a] lawyer is
often the only person who could thread the labyrinth.”[70] Add
to this the confusion arising from linguistic and cultural differences, as well
as the fear and psychological strain caused by the experience of being arrested
and detained, and the importance of an attorney becomes even more apparent.

For its part, the United States government appears at every
deportation hearing represented by a Department of Homeland Security attorney.
In the face of such opposition, an immigrant may be unable to adroitly argue
her side of the story without the assistance of legal counsel. The importance
of counsel to a non-citizen’s case has been demonstrated forcefully in
the context of refugees seeking asylum in the United States:

[W]hether an asylum seeker is represented in court is the
single most important factor affecting the outcome of her case. Represented
asylum seekers were granted asylum at a rate of 45.6%, almost three times as
high as the 16.3% grant rate for those without legal counsel.[71]

The essential relationship between an attorney and an
immigrant facing deportation is also protected under human rights law. The
International Covenant on Civil and Political Rights (ICCPR), a treaty to which
the United States is party, provides in Article 13 for a non-citizen’s
right to defend against deportation and to “be represented for the
purpose before the competent authority or a person or persons especially
designated by the competent authority.”[72]

US law also provides that immigrants may choose and pay for
their own attorneys:

Right to Counsel—In any removal proceedings before an
immigration judge and in any appeal proceedings ... the person concerned shall
have the privilege of being represented (at no expense to the Government) by
such counsel, authorized to practice in such proceedings, as he shall choose.[73]

Federal regulations make clear that this right to counsel
applies to any proceeding in which an examination of the immigrant’s case
occurs, including a bond hearing, master calendar hearing, merits hearing, and
any appeals.[74]

Despite the widespread recognition of the importance of
legal counsel during deportation proceedings, as Table 14 illustrates, the
majority of immigrants (60 percent in 2008) go through the entire process
without an attorney.

Table 14: Non-Citizens Appearing in Immigration Court without Counsel

Fiscal Year

Percent of Non-Citizens Appearing in Immigration
Court without Counsel

2008

60%

2007

58%

2006

65%

2005

65%

2004

55%

2003

52%

2002

55%

2001

59% (approximate)

2000

58% (approximate)

Source: US Department of Justice, Executive Office for
Immigration Review, “Fiscal Year 2008 Statistical Year Book,”
Office of Planning, Analysis, and Technology, March 2009, p. 5; US Department
of Justice, Executive Office for Immigration Review, “Fiscal Year 2007
Statistical Year Book,” Office of Planning, Analysis, and Technology,
April 2008, p. 5; US Department of Justice, Executive Office for Immigration
Review, “Fiscal Year 2006 Statistical Year Book,” Office of
Planning, Analysis, and Technology, February 2007, p. 6; US Department of
Justice, Executive Office for Immigration Review, “Fiscal Year 2005
Statistical Year Book,” Office of Planning, Analysis, and Technology,
February 2006, p. 6; US Department of Justice, Executive Office for Immigration
Review, “Fiscal Year 2004 Statistical Year Book,” Office of
Planning and Analysis, March 2005, p. 7; US Department of Justice, Executive
Office for Immigration Review, “Fiscal Year 2003 Statistical Year Book,”
Office of Planning and Analysis, April 2004, p. 7; US Department of Justice,
Executive Office for Immigration Review, “Fiscal Year 2002 Statistical
Year Book,” Office of Planning and Analysis, April 2003, p. 7; US
Department of Justice, Executive Office for Immigration Review, “Fiscal
Year 2001 Statistical Year Book,” Office of Planning and Analysis, March
2002, p. 24 (fiscal years 2001 and 2000).

Transfers Obstruct Established Attorney-Client
Relationships

It’s hugely difficult for the attorney-client
relationship. You go from a situation where you are able to meet with your
client to a situation where he is thousands of miles away. We looked into
sending one of our lawyers to Texas, just to drop in because he was in the
middle of nowhere. But we never did. It’s difficult to get to.[75]

Inherent in the right to representation by counsel is the
practical requirement that ICE keep attorneys informed of the whereabouts of
their detained clients. Despite the requirement in the detention standards that
attorneys “shall be” notified of detainee transfers, the standards
are not laws; therefore ICE can violate its own standards with relative
impunity. The non-binding nature of the standards is illustrated by the many
instances Human Rights Watch documented in which such notifications were either
not made at all, or not made until several days or weeks after a detainee was
“en route to” or “ha[d] arrived at” the new detention
location.

In nearly every case documented by Human Rights Watch,
attorneys learned of the transfers not from ICE, but rather from the detainee
or his family. A March 2009 investigation of ICE’s transfer policies
conducted by the Department of Homeland Security’s Office of Inspector
General (OIG) confirmed this finding when it stated, “ICE staff
interviewed at the sites visited said they did not notify the detainee’s legal
representative because they considered the notifications to be the
detainee’s responsibility.”[76]
This belief on the part of ICE staff persisted despite the fact that, as the
OIG noted, “ICE is required to notify the representative of record that
the detainee is being transferred.”[77]
The 2009 Schriro Detention Report stated that attorneys: “Report that
their clients are transferred to locations prohibitively far away, and that
they are not notified when their clients are moved.”[78]

While some detainees do eventually manage to get in contact
with their attorneys after transfer, some are unable to tell their attorneys
where they are. An attorney in Louisiana told Human Rights Watch that her
client had been transferred “four or five times. When he called me, he
didn’t even know where he was. Turned out he is in New Mexico.”[79]
Still others cannot afford to purchase phone cards to let their family or
attorneys know of their new location.[80]

I have never represented someone who has not been in more
than three detention facilities. Could be El Paso, Texas, a facility in
Arizona, or they send people to Hawaii. Even after the NTA is filed, the
transfers occur. Some can just do a merry-go-round throughout the time they are
in immigration facilities.... I have been practicing immigration law for more
than a decade. Never once have I been notified of transfer. Never.[81]

In all cases documented by Human Rights Watch in which
detainees’ attorneys were not timely notified of transfers, the attorney
had already filed a notice of representation with ICE (this notice is called a
“G-28”) prior to the transfer of his or her client. Therefore,
these transfers are also inconsistent with ICE’s stated preference: “we
prefer not to transfer anyone with a G-28 on file. But, there is still a need
in some cases.”[82]

For example, Natalie S., an immigration attorney in
Pennsylvania, had a G-28 on file for a client who was transferred to Willacy
Detention Center in Raymondville, Texas, on March 18, 2008. Two days after the
transfer, the client’s wife called Natalie S. to inform her of the
transfer. At the time of the call, ICE had not yet informed Natalie that her
client had been transferred.[83]

In another case Lamar P., an immigration attorney in San
Francisco, had a G-28 on file for seven months when his client was moved from
detention in California to Seattle, Washington. His client was transferred on
July 13, 1998, and counsel was not notified of the transfer until seven days
later on July 20, 1998.[84]

After their clients were transferred, many attorneys
reported to Human Rights Watch that they had to resort to calling detention
centers around the country to try to find their clients.[85] One
attorney in Chicago explained that she often calls for a regular telephone
meeting with one of her detained clients (for whom she always files G-28
forms), only to have to cancel the call when her client cannot be found, at
which point she begins “calling around to find them.”[86]

It is hardly surprising that attorneys are not informed of
transfers given that ICE itself does not always keep track of where it has
transferred detainees, and detainees remain “lost” for weeks or
months at a time. A 2006 report issued by the Department of Homeland
Security’s Office of the Inspector General described a transferred
detainee whose new location was not updated for five months: “A detainee
from CCA [Corrections Corporation of America detention facility in Florence,
Arizona][87]
was transferred to a Florida detention facility in November 2005. He remained
listed in DACS [ICE’s computer system] for CCA until April 2006.”[88]
Although a more recent DHS OIG investigation noted an improvement in
ICE’s tracking of detainees, with the agency accurately recording the
location of 94 percent of detainees in 2009, up from 90 percent in 2006, those
who were inaccurately recorded remained “lost” for 3.7 days on
average.[89]

Although a delay of several days may seem minor, when an
attorney is not notified of a transfer it can have a serious impact on a
detainee’s case. Crucial time in which an attorney and client can work
together in person on preparing evidence or witness lists is lost, and
sometimes filing deadlines are missed. Attorneys have no choice but to resign
themselves to the fact that their clients have been transferred and begin to
grapple with the challenges inherent in long-distance representation.

The logistics involved in representing a transferred
detainee are significant impediments to effective lawyering. Most immigrants in
deportation hearings are represented by pro bono attorneys who cannot afford to
travel, and telephone communication is simply not adequate for proper
representation. One commentator explained:

Most pro bono attorneys cannot afford to travel to remote
detention facilities to appear at hearings or to meet with clients. Telephone
conversations may also be impossible, because most detention centers have few,
if any, telephones, few aliens can afford long distance telephone calls, and
aliens and their attorneys often do not speak the same language. Thus, in most
cases, transfer prevents even minimal communication between attorney and client
and effectively prohibits adequate representation.[90]

The
Logistical Challenges of Representing a Transferred Client

A pro bono immigration attorney
interviewed by Human Rights Watch described the challenges she faced in
representing her client, a young man seeking asylum who was first detained by
ICE in a facility for children when he was 17 years old. After reaching
adulthood, he was transferred to a relatively convenient adult facility
located an hour’s drive away from his attorney’s office in
Chicago. He was then transferred from that facility to a detention facility
360 miles away in Kentucky. The attorney explained:

I had a G-28 on file for him as of March 2007. He was
ordered removed on December 1, 2008, and was detained at McHenry [a county
jail in Woodstock, Illinois]. Then he was transferred on December 14, 2008. I
didn’t find out where he had been moved until December 23. I tried to
call him at McHenry on December 14, but my conference call was cancelled
because he wasn’t there. Then I called the four other [ICE] facilities
[in Illinois] and found out he wasn’t at any of those facilities.
Finally, I emailed ICE headquarters to ask where he was, and in the reply
email they said he was at Boone County, Kentucky! Now that he’s in
Kentucky, the main problem is that the detainees cannot call out. Without
calling cards, they have trouble getting through on the 1-800 number, and
they cannot make collect calls. They can’t fax us from there.... We
needed him to sign some documents, it took about three weeks for us to get
them signed ... I haven’t gone to Kentucky to see him in person,
because given the volume of clients and the distance, there isn’t even
the possibility of being able to drive.[91]

An immigration attorney in northern California described
what it was like representing her mentally ill client who had been transferred
840 miles away to Arizona. Due to ICE’s failure to follow up on his
medical care, he was not on his prescribed medications and was “talking
to himself, urinating on himself ... and they put him in solitary
confinement.” Once in solitary confinement, all visits were limited to 30
minutes. She explained:

His family left California on a Thursday and spent 500
bucks to get there, only to have only 30 minutes with him on the Friday....
[For his case] we needed his signature, but given his condition, we
couldn’t just send him a letter and ask him to sign it. It was a two-day
trip [for our attorneys] just to get his signature.[92]

Another immigration attorney in Chicago explained what
happened when her client was transferred to Texas:

I had a G-28 on file. I was not notified that my client was
being transferred, and that routinely happens. He was transferred without
giving me any notice. I had already established contact with [my
client’s] deportation officer in October 2007. Then I got a call on
November 15 from my client—he called to let me know they were sending him
somewhere. I called the deportation officer. He didn’t know where he was
going so I got in touch with his supervisor, who told me [my client] was
already gone, and they couldn’t tell me where he was going. I ended up
finding him by process of elimination. I called places all around the county. I
wasn’t told of his whereabouts from ICE. I finally spoke to my client on
November 20, 2007. He had been sent from Chicago to Texas.[93]

As these cases indicate, some immigration attorneys struggle
to represent their clients after transfer. However, even this limited form of
representation can continue only if immigration judges allow attorneys to
appear for hearings over the telephone or through video conferencing. One
immigration attorney acknowledges that the ability to “appear”
through such alternative means is a privilege that can be abused by
unscrupulous attorneys who prefer not to travel to the immigration courts and
who “will, you know, call in for a hearing from a ball game.”[94]
Nevertheless, if the right to counsel is to be respected in immigration
proceedings, video and telephone accommodations must be made by immigration
judges. This is true despite the fact that in some cases, appearance over
telephone or video is problematic because it is a less effective means of
advocacy.[95]

Human Rights Watch interviewed the sister of a legal
permanent resident detainee facing deportation for a criminal conviction who
was transferred from detention in New York to New Mexico. Many detained
immigrants in New Mexico have their deportation hearings in El Paso, Texas,
which was true for this young man as well. While everyone in the family had
contributed what they could to pay for a lawyer in Brooklyn, New York, the
detainee’s sister explained that the lawyer was hampered by having to do
her work over the phone:

My brother had his first hearing over the phone. The judge
was annoyed that she [the attorney] wasn’t there [in Texas]. He
didn’t allow the lawyer to say much. The case went like the judge had
already made up his mind. [The attorney’s] voice is a little too soft—she
is very capable of doing this, she’s smart and knows what to do, but the
phone? It’s definitely hard for her. That’s why we’re trying
so hard to find the money so she can go down there.[96]

Although testimony or legal representation over the phone or
video is never as persuasive as an in-courtroom appearance, an attorney
appearing through one of these means is better than no attorney at all.
Unfortunately, some immigration judges prohibit attorneys from appearing on
behalf of their clients by telephone or video conference. In addition, some
judges simply deny motions to appear telephonically because they are filed
after the standard two-week deadline for filing motions. However, since
immigration attorneys are sometimes not informed of their clients’
transfers, it may be impossible for them to meet this standard deadline.
Judges’ rigid decisions to bar telephonic or video appearances contrast
with the flexibility they could employ, since according to the governmental
body that sets policies for immigration judges:

There are no required or recommended models regarding the
location of the DHS [government’s] attorney, the respondent’s
[non-citizen’s] attorney, and witnesses/family members for video or
telephone conference hearings.... Yes, it is possible for Immigration Judges to
conduct an immigration hearing via video or telephone conference in which the
judge, DHS attorney, and respondent are in one location, but the
respondent’s attorney, family members, employers, and other witnesses are
in a different location.[97]

Contrary to this stated flexibility, an immigration attorney
in California described the variety of rigid rules she has encountered in her
practice:

In San Antonio, Texas, the judges won’t let a telephonic
appearance happen. But in Eloy, Arizona, you’ll never have your
telephonic appearance denied. For El Centro, California, the judges require you
to appear in person for the first hearing [a 600 mile trip from northern
California], but afterwards you can appear telephonically. But if your client
is at Otay Mesa [530 miles from northern California], the judges there do not
ever allow telephonic appearances. It’s a real nightmare.[98]

Transfers do not merely make the ongoing tasks of
maintaining an attorney-client relationship more difficult. Sometimes, for one
or more of the reasons outlined above, transfers sever the relationship
completely. An attorney in El Paso said simply, “it’s a regular
occurrence that people lose their attorney after transfer.”[99] Some
detainees lose their attorneys completely after transfer because of changes in
the law in the new jurisdiction, because logistical challenges make ongoing
representation impossible, or because the immigration judges in the new
location will not allow their attorneys to appear via telephone or video, and
the detainee cannot afford to pay for an attorney to travel to appear in court
in the new location.

As one attorney told Human Rights Watch, “it really
snowballs very fast for families as far as cost is concerned. You can imagine ...
[after transfer to Texas] they’re going to have to hire another counsel.
It’s a vast amount of money for people who don’t have money to
begin with.”[100]

Another attorney told Human Rights Watch,

In the cases that we see, ICE ignores the existence of
prior counsel all the time.... The detainee gets transferred out here, and
calls counsel, and all of sudden the counsel has to find someone local or drop
the case.[101]

Transfer
of Detainee Severs Attorney-Client Relationship

John M., originally from Ukraine and living lawfully in
Boulder, Colorado, since 1994, became subject to removal proceedings in 2007
based on a conviction for trespassing and stalking.[102]
He retained an attorney in Boulder to represent him. However, on December 21,
2007, John M. was transferred 895 miles away to detention in Arizona, and
ICE’s motion to change venue was granted.

John M.’s attorney explained that since telephone
appearances were not allowed by the new immigration judge in Arizona, it
would be “very costly” for him to pay to fly his attorney from
Colorado to Arizona for purposes of representation. In addition, his attorney
explained that he was not as well informed about the applicable law in
Arizona (Ninth Circuit), since he was used to practicing in the TenthCircuit.
For these reasons, John M. lost his attorney. He told Human Rights Watch,
“When I came here I lost my lawyer ... so I tried to hire another
lawyer, but I cannot find anyone here.”[103]

Kwan I., who lived lawfully in the US with his wife and two
US citizen children for 12 years, was arrested by ICE in Philadelphia and put
into deportation proceedings after serving time for driving while impaired. He
spent three days in a detention facility in York, Pennsylvania. His wife was
able to secure an attorney for him there. However, on November 16, 2007 he was
“put on a plane and transferred [to Texas]. They did not explain why.
They just sent me here.” His attorney in Philadelphia found an attorney
in Texas who was willing to represent him, but, Kwan told Human Rights Watch,
“I have not talked to [her] yet. I don’t have money to hire her. I
don’t know what is going on. No one here speaks Korean, so I must use my
wife to talk over the phone.” Commenting on the difference it would have
made had he been allowed to remain in Pennsylvania, he said, “Absolutely
it would have made a difference [if they had kept me in Pennsylvania] because
it takes only two hours to drive between York and [my attorney’s]
office.”[104]

A
Rare Case of Reversing Transfer

In rare cases, courts have recognized that transfers can
deprive non-citizens of the counsel of their choice. Some have ordered the
return of the individual to the pre-transfer location, or have enjoined the
immigration authorities from engaging in further transfers.[105]
An immigration attorney told Human Rights Watch how she eventually managed to
get her client, who had been transferred from Chicago to Texas, sent back to
Chicago after she had filed a motion to re-open his case. She even managed to
get the government attorney to join with her in filing the motion to re-open,
and venue was set in Chicago, requiring her client to return there from
Texas:

It was hard to represent him from a distance. I was
drafting an affidavit, and it was a lengthy affidavit, so I was fortunate
that my client was kind of savvy. I was relying on him calling. We finally
got his signature after sending it via federal express, and he signed it and
returned it....

The key point to me is that the government agreed with me
that his case needed to go forward, but even given that, ICE/DRO spent money
to transfer him. It was a big waste of money for everybody and difficult for
him. No one contacted me about the transfer. By the time I contacted an
officer, they said it was too late. Even when the government signed the joint
motion, they wouldn’t bring him back then, they waited until the judge
granted the motion. The whole thing was just a waste.[106]

Court decisions to return transferred detainees are few and
far between because transfers must be shown to be actually prejudicial to the
immigrant’s case before a judge will take remedial action. This is a very
high threshold of proof—essentially an exercise in crystal-ball gazing.
The immigrant must prove (ironically without access to counsel nearby to aid in
making the case) that regular access to a lawyer located in the pre-transfer
location would have brought a significantly different result in his deportation
case. Moreover, the 1996 laws put jurisdictional hurdles in place, making it increasingly
difficult for detainees to obtain judicial review of this issue. The vast
majority of cases even considering the issue were decided before 1996, and
these decisions regularly found that a transfer does not impede the
attorney-client relationship.[107]
It is common for detained non-citizens to never raise the issue and give up on
their appeals, resulting in their deportation from the United States.

As one attorney explained to a Human Rights Watch
researcher:

After transfer, detainees lose the certainty [that comes
from being near their attorneys]. I always speculated that transfer did have an
effect on people and frankly I spent a good chunk of time with [my transferred
client] saying to me, “I just want to quit. I’ll just go back to
the Philippines.” Some transferred people did that, they just dropped
their cases and said that they were giving up. I’m sure it happens all
the time.[108]

Transfers create such significant obstacles to existing
attorney-client relationships that ICE Special Advisor Dora Schriro recommended
in her October 2009 report that:

Detainees who are represented by counsel should not be
transferred outside the area unless there are exigent health or safety reasons,
and when this occurs, the attorney should be notified promptly.[109]

Interference with Transferred Detainees’
Rights to Choose Counsel

Immigrants are often taken into custody by ICE at a location
near to their home community where their family members, employers, church
members, and other support networks are located. Their detention near to these
support networks increases the chances that a detainee will be able to obtain
legal representation in immigration proceedings. Once detainees are transferred
to remote locations, they encounter much greater difficulties in obtaining local
counsel. Their families may be able to find a lawyer, but that lawyer is likely
to be located thousands of miles away, and may be unable or unwilling to go
forward with representation of a distant client. In this way, the policy of
transfers is inconsistent with non-citizens’ statutory right under US law
to “[be] represented (at no expense to the Government) by such counsel,
authorized to practice in such proceedings, as he shall choose”[110]

“Like
the Difference Between Heaven and Earth”

As a nine-year-old in 1970, Michael M. entered the US
lawfully from Lebanon.[111]
His parents are now US citizens, as are his sister, brother, ex-wife, and two
children. His entire family and his support network, including a sizeable
Lebanese community, are located in the Los Angeles area.

Michael M. was transferred 1,400 miles away to a detention
facility in Texas after a few weeks in detention in southern California. He
told Human Rights Watch that the difference for him between being detained in
California and being detained in Texas is “like the difference between
heaven and earth. At least in California I had a better chance. I could hire
a Lebanese attorney to represent me. Now, here, I have no chance other than
what the grace of God gives me.”[112]

A detainee who lived lawfully in the United States since
1990 and was facing deportation because of a drug conviction was transferred
after serving his sentence on Riker’s Island, New York, to Varick Street
Detention Center in New York. From there he was sent to York, Pennsylvania, and
finally he was transferred 2,000 miles away to Otero County Processing Center
in Chaparral, New Mexico. He said, “I can’t really do anything on
my case and I can’t find a lawyer here in New Mexico. Everything would be
better if I was nearer to my family and a place where I could find an
attorney.”[113]

Another detainee, who had fled to the US from Guinea to
escape female genital mutilation, had been transferred 2,025 miles from
Cleveland, Ohio, to Florence, Arizona. She had spent two years in detention at
the time of her interview with Human Rights Watch. She explained that before
she could meet with the lawyer her brother had found for her in Cleveland,
“They transferred me here [to Arizona]. He couldn’t do anything for
me here. I don’t have him anymore.”[114]

A detainee from Mexico, who had lived in Los Angeles for 29
years, working in construction and manufacturing, with four US citizen
children, was facing deportation because of a criminal conviction. He was
transferred from Los Angeles to a detention center 435 miles away in Arizona.
He told Human Rights Watch, “I tried to call attorneys in California to
come and help me. If I was in Los Angeles, it would be easier to find a lawyer.
But, here...? One lawyer in California wanted to charge me $3,000 just for the
trip to Arizona.”[115]

An immigration attorney in Arizona said,

We have the private contracted prisons here. We have lots
of [ICE] bedspace here in the middle of nowhere. The Florence Project [a small
team of pro bono immigration attorneys in the state] can only represent a small
number of cases. They do the best they can to represent them. But by far,
detainees in Arizona have to be prepared to go it alone.[116]

In 2007, Christina Fiflis of the American Bar Association
spoke about the paucity of legal counsel for detainees before the Committee on
Homeland Security of the US House of Representatives. Remarking on the regular
practice of transferring detainees from the east coast to facilities in Texas,
she said:

Legal services for indigent immigrant detainees in South
Texas are scarce, yet 3,200 beds are available for detainees at PIDC [Port
Isabel Detention Center] and the Willacy County Processing Center in
Raymondville, Texas. Detainees can no longer meet with their attorneys, and the
local Immigration Judges regularly deny motions by counsel to appear
telephonically for removal hearings. Existing counsel must either find local
counsel to make appearances, travel to South Texas, or withdraw from their
clients’ cases. The service providers in South Texas are only able to
serve a fraction of the high volume of detainees in need of assistance when
their original attorneys are forced to withdraw. These transfers are resulting
in a lack of access to counsel for detainees.[117]

Corroborating this assessment, another detainee who said he
feared persecution and torture in his home country of Indonesia based on his
Chinese ethnicity was transferred to a detention center in Texas that was 1,400
miles away from his home community in Los Angeles. He told Human Rights Watch,

I could find a lawyer if I was detained in California. I
have friends and my brother who could help me to find a lawyer. Here in Texas,
I sent letters to lawyers to ask them to help me. I thought one had agreed. But
that lawyer did not come to my final court date. I went to all of them alone.
I’ve been in detention for seven months. I give up. I’m not going
to appeal anymore.[118]

As the above testimony indicates, detainees not only have a
harder time finding an attorney in the places to which they are transferred,
many find that after transfer their willingness to defend against removal wanes
as they spend increasing amounts of time in detention, far away from family and
their community of support. As one detainee in Arizona put it, “After a while,
some guys just sign for their [voluntary] departure, because they don’t
have a lawyer and don’t feel able to fight.”[119]

The frequency of detainee transfers is also having a
chilling effect on whether attorneys are willing to initiate an attorney-client
relationship at all. Advocates told Human Rights Watch that attorneys are
increasingly reluctant to take on cases from detainees because they can so
easily be transferred across the country.[120]

Despite the clear interference transfer creates with a
detainee’s ability to be represented by counsel, which is a right under
US statutory and international human rights law, the US Ninth Circuit Court of Appeals
has concluded that “‘[t]he government simply is not obligated to
detain aliens where their ability to obtain representation is the
greatest.’”[121]
While one can understand why a court would not insist on the
“greatest” possible access to counsel, the right has little meaning
where the government can regularly and arbitrarily transfer detainees to
locations far from their counsel of choice or locate major detention facilities
in places where detainees are unable to obtain representation. A middle ground
exists between those extremes.

VIII. Violation of the Rights to Challenge
Detention and to Fair Venue

Bond Hearings Delayed or Hindered by Transfers of
Detainees

Once an individual is detained, he or she has the right to
request what is known as a bond redetermination hearing (or a “bond
hearing”) from the immigration judge. This bond hearing, during which the
detainee asks to be released from detention, can go forward irrespective of
whether the notice to appear has been issued or filed with the immigration
court.[122]

The three factors used by the immigration court in deciding
whether to grant a bond, and in what amount, are: (1) the non-citizen’s
danger to the community, (2) his or her risk of flight (or likelihood of
appearance for subsequent hearings if released from detention), and (3) whether
the non-citizen is subject to mandatory detention provisions, which apply
mostly to non-citizens facing deportation for criminal offenses, or is subject
to other regulations which deprive the immigration judge of jurisdiction.[123] It
is essential that witnesses and evidence relevant to these three factors are
presented at the bond hearing. As one attorney advises fellow immigration
practitioners:

It will [sic] important to document these factors as
well as possible, with evidence of: the non-citizen’s relatives in the US
who have lawful status; non-existent criminal record (or minor crimes);
rehabilitation following any criminal activity; a stable place to live; a job
to return to, or a job offer of future employment; eligibility for relief from
removal (or even voluntary departure), so there is incentive to return to any
hearings, and other relevant information. Have friends and family write letters
of support and appear, if possible, at the bond hearing (possibly to testify,
or just to be introduced to the judge).[124]

Unfortunately, ICE’s policy of transferring detainees
before a bond hearing is even scheduled, as well as transferring them without
regard to scheduled bond hearings, often seriously delays their access to such
a hearing. In addition, the inability of transferred detainees to produce
witnesses or to provide evidence concerning the three relevant factors makes it
much more difficult for them to prevail at their hearings.

When transfers interfere in one or both of these ways with
bond hearings, the human right of detainees to a speedy decision on the
lawfulness of their detention is threatened. Article 9.4 of the ICCPR states:

Anyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings before a court, in order that
the court may decide without delay on the lawfulness of his detention
and order his release if the detention is not lawful.[125]

When an immigration judge weighs the factors at issue in a
bond hearing, the detainee needs to present evidence of ties to the community,
such as close family relationships, the possibility of employment, and a stable
place to live. However, transferred detainees cannot present evidence of these
factors through direct testimony from witnesses. As one detainee who was facing
deportation because of convictions for assault and for buying and selling food
stamps explained,

I have everything in America. I have the money for a bond.
I can show that I will cooperate. I have been here for 13 years. I own a house.
I work in a restaurant ... Since my two crimes, I have obeyed the law very
well. I want to be out because my children need my help. My wife works hard and
she needs me out. I have three children, one girl who is eight, a boy who is six,
and our five-year-old daughter with autism. If I could have bond, I could help
them. If I could have had my [bond] hearing in Pennsylvania before getting sent
here [to Texas], I would have been out long ago.[126]

In addition, since one of the factors weighed in bond
hearings is the dangerousness of the individual, if the non-citizen is facing
deportation because of a criminal conviction, the victim of the crime can often
be a very persuasive witness. Victims of relatively minor crimes committed by
non-citizens are often willing to testify. In some cases, their desire for
justice already has been satisfied by the individual spending some time in
prison or paying a fine. In other cases, victims are relatives who turned in
their non-citizen family member for minor crimes.[127] In
some of these cases, victims are shocked to learn that, as a result of their
holding the non-citizen relative accountable for a minor crime, he or she is
facing permanent banishment from the United States.

As one attorney said, “for bond hearings, whenever you
can, and it happens often since some crimes are relatively minor, you want the
victim to testify to disprove the dangerousness.”[128]
However, after transfer to a remote detention center, it is extremely unlikely
that the victim will be able to travel to the new location in order to testify,
thereby making it unlikely that the detainee will obtain bond.

Transfer
Just Prior to Bond Hearing

Thomas P., a legal permanent resident originally from
Jamaica, was placed in removal proceedings in Pennsylvania due to his
conviction for drug possession.[129]
According to his attorney, some individuals in Pennsylvania with similar
convictions had been granted bond in the past. Several aspects of
Thomas’s application, including the lack of violence in his crime, as
well as his longstanding employment and residence in the community and close
family relationships, would have weighed against his dangerousness and flight
risk and in favor of granting him bond. Thomas had lived in Pennsylvania with
his wife in a home which they owned and had worked for the same employer for
20 years. His attorney filed a motion for a bond hearing and the hearing was
scheduled for March 20, 2008, by the York immigration court. Two days prior
to his hearing, Thomas P. was transferred 1,816 miles away to Willacy
Detention Center in Texas. His bond hearing was rescheduled in Texas for
April 28, 2008. His attorney appeared by telephone, and he was not able to
have his wife, two sons, two daughters, or employer present at the hearing.
His bond was denied.[130]

As the case above demonstrates, ICE sometimes decides to
transfer a detainee just before a bond hearing is to be held. While we have no
evidence showing that ICE intends to interfere with bond hearings, frequent
interference occurs because ICE does not check whether such a hearing has
occurred and is not required to check under existing transfer policies. An
immigration attorney in El Paso explained that he often saw detainees
transferred to New Mexico or Texas just before their scheduled bond hearings in
various east coast detention locations:

On a regular basis, transfers down here interfere with
people’s ability to obtain bond. In some cases, people are transferred
before they can have their bond hearing. Then, once they’re down here,
they’re likely to be denied. We’ve also had cases where people are
given a bond in city A and before the family can even post the bond in city A,
they are transferred to El Paso—and then find that their bond is
cancelled by the immigration judge down here. Getting transferred down here
means little chance of getting bond.[131]

In another example, the mother of a young man living in Long
Beach, New York, wrote her congressman to express her concern that her son was
transferred from a detention facility in New Jersey to New Mexico on the same
day as his bond hearing.

On the day of his trial a U.S. Marshall [sic] informed him
they were transferring him to New Mexico. Despite him telling them he was due
in court that very morning they still transferred him.... We have not seen him
in almost two months.[132]

Of course, many transferred detainees interviewed by Human
Rights Watch did not even know that they had the right to apply for bond. Many
did not have attorneys to advise them of this right. Many of those who somehow
learned of the opportunity to apply for bond faced an uphill battle proving,
without ready access to witnesses and evidence, that they met the requisite
criteria.

Transferred Detainees are Rarely Able to Change
Venue

ICE’s decision to transfer a detainee is a step of
immense significance. Even if a detainee has spent all of her time living in
the United States within a particular state, and even if her deportation is due
to a previous violation of the criminal laws of that state, if a detainee is
transferred before the NTA has been filed with the immigration court, she can
expect to have her entire case proceed in the new post-transfer state, subject
to the law as interpreted by the US Court of Appeals that hears cases
originating from that state.

If this occurs, detainees and their lawyers may attempt to
change venue back to the original pre-transfer location. However, it is very
difficult for a detainee to win a change of venue motion (as discussed below,
it appears to be less difficult for government attorneys). In order to change
the venue for a deportation case, the judge must find “good cause.”
Good cause is understood to require the balancing of several factors, some that
tip the scales in favor of the US government, and some that tend to favor the
detainee. Judges typically weigh:

Administrative convenience; expeditious treatment of the
case; location of witnesses; cost of transporting witnesses or evidence to a
new location; and factors commonly associated with the alien’s place of
residence.[133]

While these factors on their face may appear balanced,
detainees and their attorneys confront particular challenges when presenting a
change of venue motion, since “the mere fact that an applicant allegedly
resides ... in another city, without a showing of other significant factors
associated with such residence, is insufficient.”[134]
Moreover, the power rests entirely with the immigration judge, who may base his
or her decision on evidence of administrative convenience and/or expeditious
treatment of the case alone (both of which are factors weighing against
changing venue for a transferred detainee):

Change of venue is committed to the sound discretion of the
immigration judge and will not be overturned except for an abuse of discretion.
An immigration judge commits an abuse of discretion only if there is no
evidence to support the decision or if the decision is based on an
improper understanding of the law.[135]

Moreover, courts have consistently held that the location of
a detainee’s attorney (often the same location as the detainee’s
witnesses and former place of residence) is insufficient cause for change of venue.[136]
Finally, judges have not been required to weigh whether a non-citizen will be
subject to a less favorable legal standard in the new venue, which can be
decisive.[137]

In cases in which ICE chooses to transfer a detainee after
the NTA is filed with the immigration court, the agency consistently files a
motion to change the venue to the new, post-transfer jurisdiction. Often,
especially when a detainee is unrepresented, he or she may not understand the
significance of the change of venue motion filed by the DHS attorney, and
therefore may passively agree to the case proceeding in the new jurisdiction.
One immigration attorney in Arizona reported to Human Rights Watch that
transferred detainees were pressured to sign statements of non-opposition to
change of venue motions, or did not fully understand the motions before
agreeing not to oppose them.[138]

When detainees are the ones requesting change of venue, many
judges seem to take a view similar to the one articulated by a judge in Seattle
who, during a hearing, said to the attorney for a transferred detainee:

I don’t normally grant motions for a change of venue
[filed by a detainee].... Because he is in detention being held by the INS
[ICE’s predecessor], I cannot tell the INS to transfer to another
district....[139]

A court reviewing this and other statements by the Seattle
immigration judge (“IJ”) noted, disapproving of the IJ’s
conduct, “the IJ advised counsel that it was her practice to deny motions
for change of venue for detained aliens unless the INS agreed.”[140]

Interviews with immigration attorneys support the idea that
change of venue motions filed on behalf of transferred detainees are rarely
won. One attorney represented a mentally ill Cuban asylum seeker, whose father
was a key witness in the case and due to age and disability, could not travel
from Los Angeles to Eloy, Arizona, where his son was detained. The attorney
explained to Human Rights Watch,

This case was my first successful change of venue motion in
more than a decade of practice. We filed a phone book [a large number of
documents] to get this guy’s venue changed.[141]

A detainee in Texas, who had spent one month in detention in
Pennsylvania near to his Pittsburgh attorney, his US citizen wife, and his 15-month-old
US citizen daughter, filed a change of venue motion after his transfer to
Texas. He told Human Rights Watch

The judge [in Texas] asked me “where is your
lawyer?” and I told her that she was in Pennsylvania. Also, all my
documents, my daughter’s birth certificate, the police records.... everything
was there. But, I filed the change of venue motion and it was denied.[142]

An attorney in Texas explained that the US government
“opposes everything. So, when you file a change of venue motion,
you’re going to get a boilerplate opposition from the [DHS]
counsel’s office.” This same attorney described one unusual case in
which he had been successful in changing venue:

We filed a change of venue motion giving a witness list for
eight or so people in San Antonio. It was hard to convince this client to keep
fighting. He was so depressed, and he just wanted to take voluntary departure.
But, the judge heard our motion and said “I recognize that all these
witnesses have to appear, I recognize that this guy’s moral character is
going to be very much in issue, I will grant the change of venue.”[143]

While not every detainee, especially those who are
unrepresented, knows to file a change of venue motion, every detainee
interviewed by Human Rights Watch in Texas who had managed to file such a
motion was denied.[144]

Due to our concerns about ICE’s common practice of
transferring detainees and subsequently filing change of venue motions or
opposing motions filed by detainees, Human Rights Watch asked the Executive
Office for Immigration Review to give us statistics on the number of change of
venue motions filed by detainees and subsequently granted by immigration
courts, as well as the number filed by the government of the United States and
subsequently granted by the courts. In its response, EOIR claimed that it had
no data responsive to our questions, and specifically did not track change of
venue motions based on whether the request was filed by the DHS attorney or the
non-citizen detainee.[145]

The difficulties transferred detainees face in changing
venue raise concerns that the US is violating its obligation under Article 14
of the ICCPR to ensure “everyone ... a fair and public hearing by a
competent, independent and impartial tribunal.” Impartiality is at risk
if one litigant (such as the DHS) is invariably more successful in its attempts
to change venue. In addition, the scales of justice are not well balanced when
detainees are systematically prevented from vigorously presenting their cases
and presenting all necessary evidence due to venue considerations. Moreover,
fairness is under threat if judges do not consider whether a change of venue
motion will result in the detainee being subjected to less favorable law (a
subject discussed in detail in Chapter X), affecting his or her interest in
remaining in the United States. Of course, neither detainees nor DHS attorneys
should be empowered to shop around for the most favorable forum through change
of venue motions, which is why impartiality in deciding these motions is
essential.

IX.
Violation of the Right to Defend Against Deportation

Though
deportation is not technically a criminal proceeding, it visits a great
hardship on the individual and deprives him of the right to stay and live and
work in this land of freedom. That deportation is a penalty—at times a
most serious one—cannot be doubted. Meticulous care must be exercised
lest the procedure by which he is deprived of that liberty not meet the
essential standard of fairness.[146]

Despite the US Supreme Court’s 1945 admonition about
the need for meticulous care in deportation proceedings, transfers of detainees
often interfere with their ability to present a defense, which in turn
undermines the fairness of the entire procedure. The detrimental effects of
transfer on a detainee’s ability to present a defense were emphasized
time and again during our interviews with immigration attorneys for this
report.[147]
Detainees themselves were also deeply frustrated by the negative effect
transfer was having on their deportation cases.

There are several ways in which transfer can impede a
detainee’s defense. Immigration detainees often rely on family members,
friends, and their relationships in churches and communities of origin to
defend against deportation. The existence and strength of such relationships
are one of the few bases in US law for a non-citizen to argue that he or she
should not be deported. For example, in many cases in which the detainee can
apply to cancel his or her deportation, the detainee’s spouse, parent,
and/or child is a critical witness to establish that deportation would result
in what the law defines as “exceptional and extremely unusual
hardship.”[148]

Human Rights Watch interviewed a 61-year-old man from Mexico
who came to the United States in November 1979. His immigration status and
conviction would allow him to apply for “cancellation of removal”
based on hardship to his legal permanent resident wife, four US citizen
children, one of whom was gravely ill with a spinal injury, and 16 US citizen
grandchildren. Nevertheless, he was struggling to present evidence of these
relationships to the judge in Texas, since his family members were all in
southern California and unable to travel to Texas.[149]

In other cases, a detainee may be able to defend against
deportation based on a close family member’s status as a US citizen, or
based on the resolution of a pending application to adjust his or her own
status to one that would not result in deportation. Other detainees can defend
against deportation by proving that they themselves are US citizens. In any of
these scenarios, the detainee’s spouse, parent, and/or child is a
critical witness in establishing the required family relationship. Proximity to
one’s family may be the only way to gather the necessary evidence to
defend against deportation.

For example, the US citizen stepfather of a young man facing
deportation wrote to his congressman, begging him to stop his detained
stepson’s transfer from Boston to Louisiana. The stepfather claimed his
stepson was a US citizen due to the US citizenship of his biological father.
The stepfather was honorably discharged from the US army in 1992, after seeing
combat in the 1991 Gulf War and serving in Saudi Arabia and Germany. In
Germany, he met and married his wife, and became stepfather to her then
two-year-old son. He wrote to explain:

[T]here is even a chance that [name redacted] would be
moved to a facility as far away as Louisiana.... I am asking your office for
help in keeping [name redacted] in a Boston area facility, and for help in
slowing down the process that would have [name redacted] deported and would
break up our family. We need time to establish the fact to the US Government
that [name redacted] is actually a US citizen, due to the US citizen status of
his biological father.[150]

In asylum cases, detainees’ family members can
sometimes provide the best evidence of the persecution their loved one might
face if deported. For example, an Indonesian detainee of ethnic Chinese
background told Human Rights Watch he was trying to claim asylum because of the
persecution he and his siblings had faced in Indonesia. He was originally
detained in Los Angeles, but was transferred to Texas where he was having a
very difficult time getting evidence from his family and other sources about
the persecution he had experienced and feared in the future:

The judge says she doesn’t know if what I am saying
is true. The only document I have is a copy of my birth certificate. The people
who can prove it are in California. I signed up as a dorm cleaner so I could ...
buy a phone card. I saved up so I could try calling my brother and sisters [in
Los Angeles], but I cannot get a hold of them.... I don’t even know if
they know where I am.... If I was in California, it would be easier. I could
get the information I need from my brother. I could find a lawyer. I’ve
been in detention now for seven months. It’s getting more stressful. I
think I’m just not going to appeal anymore. What else can I do?[151]

In still other cases, a detainee’s moral character is
relevant to whether the court will find he or she must be deported. To
establish moral character, employers, family members, community witnesses, and
even victims of the detainee’s minor criminal offense can provide
essential evidence.

For example, Esteban G. entered the United States from El
Salvador as a refugee when he was 17 years old. His mother, sister, and
stepfather are all US citizens and all reside in California. Esteban was taken
into custody in Los Angeles, but “before my Mom and sister could get
there to visit me” he was transferred to detention in Texas. He was
facing deportation because of a drug possession conviction, for which he had
been sentenced to probation. He told Human Rights Watch how difficult it has
been for him to defend against his deportation, both because his documents were
lost during the transfer and because his moral character is an issue in his
case:

First of all, they didn’t send me all my property and
papers, which I need for my case. It’s been three months since they
transferred me from LA and I still don’t have my papers. I have filed
five requests to get them. The officer said, “if you keep bothering me,
the more time it will take.” They say they are deporting me for
“trafficking,” but that is not what I was doing. My conviction is
for possession of $20 of cocaine and $5 of marijuana. I have people in Los
Angeles who can talk about my character, who know that I worked hard, went to
high school, was always there for my family. I messed up when I got involved
with the drugs. But trafficking? That’s not what I was convicted of—but
where are my papers to prove it? Plus, the judge here says that the witnesses
can’t go to court in LA and testify.[152]

As this case illustrates, there are also practical ways in
which transfers can interfere with detainees’ ability to present a
defense. In some cases, detainees lose access to law libraries after being
transferred to contract county jails.[153]
In others, detainees lose their legal documents during the transfer process.[154]
Finally, family members and friends often provide the critical link between
detainees and immigration counsel by helping detainees locate and retain
counsel, as well as by assisting in collecting supporting documents and
declarations. Transferred detainees in remote locations cannot get such help.

A legal permanent resident from the Dominican Republic detained
in Texas who was facing deportation because of a domestic violence conviction
explained that his entire family is in Pennsylvania, as are all of his
documents. He told Human Rights Watch, “I had to call to try to get the
police records myself. It took a lot of time. The judge got mad that I kept
asking for more time. But eventually they arrived. I tried to put on the case
myself. I lost.”[155]

The lack of proximity to relevant documents is an enormous
hurdle for non-citizens transferred far away from the state in which they
received their criminal conviction. This is because

the government frequently files criminal deportation
charges against aliens without providing the proper court records to prove the
conviction, and the IJ’s enter orders of deportation anyway—so the
alien often has to obtain his own certified conviction and police records to
disprove the government’s allegations.[156]

There are numerous federal court cases noting that the
government sometimes fails to submit sufficient evidence in support of its
claim that a particular non-citizen is deportable.[157]
Therefore, a transferred detainee’s inability to obtain necessary
documents from a jurisdiction far away from his or her place of post-transfer
detention, even without a strong case against him or her, can have devastating
results in his or her case.

In another example, a detainee transferred from southern
California to Texas wrote to then Attorney General Alberto Gonzales:

I have no legal representation because I cannot afford one.
Judge Rogers declined to release me on bond and remarked when I asked, that he
would not grant a request to transfer venue to Riverside, California. All
additional evidentiary documents or witnesses for my defense would be there....
California has been my home of record for most of my life. I do not pose a risk
of flight—all family and relatives are residents of California. I do not
pose a danger to anyone.[158]

Transferring detainees away from key witnesses and evidence
effectively denies them an opportunity to present a defense against removal,
which is a violation of their human rights. Article 13 of the ICCPR states:

An alien lawfully in the territory of a State Party to the
present Covenant may be expelled therefrom only in pursuance of a decision
reached in accordance with law and shall, except where compelling reasons of
national security otherwise require, be allowed to submit the reasons
against his expulsion and to have his case reviewed by, and be represented
for the purpose before, the competent authority or a person or persons
especially designated by the competent authority.[159]

The UN Human Rights Committee, which monitors state
compliance with the ICCPR, has interpreted the phrase “lawfully in the
territory” to include non-citizens who wish to challenge the validity of
the removal order against them. In addition, the committee has made this
clarifying statement: “if the legality of an alien’s entry or stay
is in dispute, any decision on this point leading to his expulsion or
deportation ought to be taken in accordance with article 13.... An alien must
be given full facilities for pursuing his remedy against expulsion so that this
right will in all the circumstances of his case be an effective one.”[160]

Despite the principle that the ability to present evidence
in one’s favor is essential to a fair hearing and despite the many ways
in which detaining non-citizens near to their families and communities of
origin facilitates access to such evidence, there is no requirement that ICE
staff weigh whether a detainee has family and community relationships nearby
when making a transfer decision. Therefore, detainees are routinely transferred
to remote locations where travel costs or immigration judges’ refusals to
allow video or telephonic appearances prevent the presentation of testimonial
evidence essential to the defense against removal.

Despite the serious problems transfer can cause for
detainees as they try to present their defenses, US courts have been decidedly
unsympathetic to these concerns. As one court states:

The INS affords detainees the right to present witnesses
and evidence at their removal proceedings, but it does not afford detainees the
means for getting those witnesses or evidence to the hearings. The fact that
Louisiana may be inconvenient for the Petitioner’s witnesses [located in
Connecticut] is insufficient to establish the prejudice required to prevent a
transfer.[161]

X. Unfair
Treatment before the Courts

It
is obviously repugnant to one’s sense of justice that the judgment meted
out ... should depend in large part on a purely fortuitous circumstance....[162]

Deportation, though not technically recognized under US law
as a form of punishment, is a coercive exercise of state power that can cause a
person to lose her ability to live with close family members in a country she
may reasonably view as “home.” Most deportees are barred, either
for decades or in many cases for the rest of their lives, from ever reentering
the United States. Similarly, the decision to grant an individual asylum from
persecution is a matter of tremendous significance, even of life and death. Given
the serious interests at stake, human rights law requires that the decision to
deport or to grant asylum be based on procedures that are scrupulously fair.
Unfortunately, the haphazard system of detainee transfers undermines the
fairness of immigration proceedings because the law applied to detainees’
cases is often changed midstream.

Not only are these changes in applicable law contrary to fundamental
notions of fairness, they may also contravene international standards on equal
treatment under the law. In important ways, immigrants facing removal are akin
to persons accused of crimes in the United States. While immigrants facing
removal are not technically in criminal proceedings, the penalties they face,
detention and deportation, are severe infringements on their liberty—much
like criminal defendants who face prison time as punishment. In addition, many
immigrants are facing deportation because they violated a particular
state’s criminal laws. However, unlike criminal defendants who normally
cannot be transferred until their trial is complete, immigrants are routinely
transferred away from the jurisdiction in which they were arrested and the
applicable law literally changes beneath their feet.

Transferred immigrants are disadvantaged and denied equal
treatment as compared with most criminal defendants in the United States. On
multiple occasions documented by Human Rights Watch, ICE’s decision to
transfer a detainee away from the jurisdiction of his or her arrest has
resulted in the application of substantive legal standards that are
significantly less beneficial to the alien’s application for relief from
deportation than the law would have been had the alien not been transferred.

Whenever a detainee is transferred between two of the 12
federal circuit courts of appeals, and his or her removal hearings take place
in the new circuit, he or she will have that circuit’s interpretation of
federal laws applied to his or her case.[163]
Since the federal circuit courts of appeals vary in their interpretations of
criminal offenses, the transfer of a detainee can affect the way the court will
interpret whether the criminal offense he is being deported for is an
“aggravated felony.” This is a very important issue for
non-citizens facing deportation, because if their convictions are considered
“aggravated felonies” under immigration law, they will be placed
into summary deportation procedures. In these summary procedures, a non-citizen
cannot ask a judge to consider canceling his deportation even if he can show
that his crime was relatively minor or his connections to the United States
(such as family relationships) are strong. If a detainee is transferred to the
jurisdiction of a court that considers his criminal conviction (for which he
has already served his criminal punishment) an aggravated felony, there is very
little he can do to defend against his banishment from the United States.

Imagine a non-citizen who has lived as a lawful permanent
resident in Detroit, Michigan, and who has two misdemeanor convictions under
Michigan law for simple possession of marijuana. After paying his fines or
serving his criminal sentence, and assuming he is detained by ICE in Michigan
and his deportation hearings proceed there, his two misdemeanor offenses would
not be considered aggravated felonies. In other words, they would not be
considered serious enough to bar him from asking the immigration judge to allow
him to remain in the United States.[164]

However, if ICE decided to transfer him to detention in
Texas or Louisiana, a likely outcome as this report has demonstrated, the law
applied to his situation would be completely different. In these post-transfer
locations, his two state misdemeanor convictions would be considered aggravated
felonies and would bar him from being able to ask the judge to cancel his
removal.[165]
Transfers between other parts of the country would bring similar results, based
on differing interpretations of what constitutes an aggravated felony. Such an
outcome rarely affects persons accused of violating federal and state criminal
laws, whose trials nearly all take place in the jurisdiction where the crime occurred.

Transfer
Leads to Deportation after 22 Years of Legal Residence

Jeffrey J., a lawful permanent resident, was interviewed
by Human Rights Watch in Texas.[166]
He was arrested and detained by ICE in New York, where his two crimes of drug
possession did not constitute an aggravated felony.[167]
Based on his legal permanent resident status, 22 years of legal residency,
and strong family relationships in the US, he would have been eligible for
cancellation of removal in New York.

After three months of detention in New York and New
Jersey, however, he was transferred to Texas, where the immigration judge
interpreted applicable Fifth Circuit law to bar his claim to relief from
removal. The Board of Immigration Appeals declined to reverse that ruling and
Jeffrey was deported from the United States. In a subsequent phone call to
Human Rights Watch from Jamaica, Jeffrey spoke of his “sadness and
depression,” not knowing anyone in Jamaica, and missing his home and
family in the United States.[168]

The case of Rafael S., who was interviewed by Human Rights
Watch in detention in Texas, illustrates this problem. Rafael was arrested and
detained by ICE in California, where he retained an immigration attorney during
the two weeks he was detained there.[169]
Under applicable law in the Ninth Circuit, Rafael’s second offense for
drug possession, in which he was neither charged nor convicted as a recidivist,
would not constitute an aggravated felony.[170]
As a result, based on his legal permanent resident status, 10 years of lawful
residence, and strong family relationships in the US, he would be eligible for
cancellation of removal. Nevertheless, he was transferred to Texas, where under
applicable Fifth Circuit law, his second drug possession offense is likely to
be interpreted to constitute an aggravated felony and thereby bar him from
applying for cancellation of removal.[171]

This same issue arises with detainees’ eligibility to change
their immigration status to one that will exempt them from deportation based on
their close family relationships inside the United States. The Fifth Circuit Court
of Appeals has determined that detainees in Texas, Mississippi, and Louisiana may
not change their immigration status in this way if they have certain types of
criminal convictions.[172]
If these same immigrants are detained in the Ninth or Tenth Circuits, such
convictions are not determinative.[173]

In still other cases, a non-citizen may have accepted a plea
bargain in his or her criminal case in reliance on that jurisdiction’s
interpretation of the conviction as a non-deportable offense. Later, if this
same individual is transferred to a jurisdiction where his or her guilty plea
renders him or her deportable—an occurrence that he or she obviously
could not have foreseen at the time of the plea—he or she may have
serious regrets about his or her decision not to fight the case.

Finally, the Fifth Circuit holds to the view that even if a
non-citizen’s criminal conviction has been subsequently vacated (meaning
that the criminal court has rendered the conviction void based on procedural or
substantive errors at trial), it is still considered a “conviction”
for the purposes of immigration law. This means that an immigrant who was
convicted of a crime in Illinois, for example, but whose conviction was vacated
because of errors at trial, if transferred to detention in Texas would still be
subject to deportation based on that conviction.[174]

Transfers Affect
Ability of Refugees to Receive Asylum

Refugees (defined as non-citizens with a well-founded fear
of persecution based on one of the grounds enumerated in the Refugee Convention)
are entitled to apply for and be granted asylum in the United States.[175]

Whether or not a particular non-citizen is granted asylum in
the United States often involves fundamental questions of life and death.
However, because so many asylum seekers in the United States are subject to
mandatory detention (at least 16,000 new asylum seekers were detained during
each of 2002 and 2003),[176]
they are often transferred between detention centers throughout the United
States and subject to the vagaries of different interpretations of the law
based on where they are transferred.

A statistical study published in the Stanford Law Review
in November 2007 revealed striking differences in the propensities of each of
the circuit courts to reconsider (or “remand”) the asylum
applications of individuals from 15 countries of origin, who had been
unsuccessful in having refugee status recognized at the lower levels of the
process. The study’s authors excluded countries whose nationals were
usually not granted asylum in the lower levels of the asylum process. Eight of
the eleven circuits that hear asylum appeals had rates of remand that were
between 8 percent and 31 percent. But the Fourth, Fifth, and Eleventh Circuits
all had remand rates under 5 percent. As noted previously, of these three circuits
with very low remand rates, the Fifth Circuit receives the largest number of
transferred detainees, and the Eleventh Circuit receives the third largest
number. In each case, some of the transferred detainees are refugees seeking
asylum, and yet by accident of transfer they have ended up in the circuits
least likely to require lower courts to take a second look at their asylum
applications. As the authors of the Stanford study recognized,

[A]ll of these circuits are applying the same national
asylum law, and it seems odd to us that the rights of refugees seeking asylum
in the United States should turn significantly on the region of the United
States in which they happen to file their applications.[177]

Substantive interpretations of asylum law also vary by
circuit. Human Rights Watch interviewed a woman in Arizona who had been living
in Ohio prior to her arrest and detention. She explained that she had been
forced to undergo female genital mutilation and several years later fled her
native Guinea when she became the mother of a girl whom she wanted to protect
from undergoing this same procedure. Had she been detained and put into
deportation procedures in Ohio, where Sixth Circuit law applied, this woman
would have had a strong chance of being granted asylum.[178] If
she had been detained and undergone deportation procedures in the neighboring Seventh
Circuit, she most likely would have had her claims denied.[179]
However, she was transferred to detention in the Ninth Circuit in Arizona where
it was possible, though not as likely as had she remained at home in Ohio, that
the court would look favorably on her case.[180]

In yet another example, an asylum seeker who was detained in
the Fifth Circuit was denied asylum even though she had been arrested and
repeatedly raped while in prison in her home country. She had been arrested
after the president was assassinated in the building in which she worked as a
government employee but the Fifth Circuit did not find the rapes to have occurred
“on account of” her political opinion or her membership in the
social group of government employees, since she could always “change her
employment”; and refrained from considering whether the rapes constituted
torture.[181]
However, if this same asylum seeker had been detained in Pennsylvania, in the Third
Circuit, her rape and imprisonment would have been recognized as persecution
and torture, and she likely would have been granted asylum and allowed to
remain in the United States.[182]

Another area of asylum law that is especially problematic
for transferred detainees relates to whether or not courts will allow them to
make a claim for asylum after the one-year filing deadline set in immigration
law. US immigration law allows an asylum seeker to apply after the one-year
deadline only after showing “extraordinary or changed
circumstances.”[183]
However, the rejection of a claim of “extraordinary or changed
circumstances” has been interpreted by some courts as a discretionary
decision by the immigration agency or attorney general that no court is able to
review or reverse.[184]

The inability to appeal the agency’s decision over
whether changed circumstances should allow for an extension of the one-year
deadline means that many transferred detainees will be denied the opportunity
even to apply for asylum. For example, an Egyptian woman applied for asylum
because she had received a threat from Islamist extremists after her attendance
at a women’s rights rally, which occurred after the one-year deadline.
Since she was applying for asylum in California, she was able to appeal certain
aspects of the immigration judge’s decision that the new threat did not
trigger the “changed circumstances” exception to the one-year
filing deadline.[185]
Had she been transferred to Illinois, New Mexico, or Pennsylvania, she would
not have been able to make that appeal.[186]

XI. The Emotional Toll of Family Separation

The
transfers are devastating—absolutely devastating. [The detainees] are
loaded onto a plane in the middle of the night. They have no idea where they
are, no idea what [US] state they are in. I cannot overemphasize the
psychological trauma to these people. What it does to their family members
cannot be fully captured either. I have taken calls from seriously hysterical
family members—incredibly traumatized people—sobbing on the phone,
crying out, “I don’t know where my son or husband is!”[187]

The detrimental effects of detainee transfers go beyond
interference with the right to counsel and to fair and equal treatment before
the courts. Since detainees are often transferred far away from their family
members and communities of support inside the United States, their detention
takes an enormous emotional and psychological toll. As described above, ICE
does not inform family members about transfers, so relatives often undergo a
great deal of stress until detainees can find a way to inform them of their new
location. As one attorney said, “It’s scary for them, because the
facilities just tell the families that [their relative has] been released. The
facilities have no idea where they have gone, so neither do the
families.”[188]

A clinical psychologist who treated
immigration detainees in Arizona spoke with a Human Rights Watch researcher
about the psychological effects transfers can have on detainees: “We’re
talking about completely isolating people from anything that would be helpful
to them.”[189]
Because they often come from families with such little income, even phone calls
are seen as a major expense and are rare.[190]
The psychologist continued, “these people are already in a desperate
place, and they are being separated from anyone who can be any kind of support
to them.”

One 22-year-old Chinese detainee told Human Rights Watch
that his transfer from detention in California to Texas had separated him from
his mother, causing them both significant distress. She had been able to make
the trip to Texas once during his five months in detention. Reflecting on that
visit in a subsequent interview with Human Rights Watch, he said, “I made
her hair turn from black to grey, and now it’s white.”[191]

Minor children and their parents often suffer acutely when
they are separated by transfer, especially when the detained parent is sent to
a location so far away that regular visits become impossible. As one detainee who
was transferred from New York to New Mexico said, “Every time I manage to
call, my two little girls are crying by the time we get off the phone. I
can’t take it.”[192]

A spouse of a detainee wrote:

I am an American Born Citizen married to [name redacted]
for 23 years with five children, one of which is currently serving our country
in Kuwait. My husband is currently incarcerated in Pennsylvania which is 750
miles away from Georgia where I am living.... I beg you to please help my
children and I during this hardship. We have a 9 & 10 year old that are
paying the consequences. They really need to be a part of their father’s
life ... if there is anything you can do to try to help us bring [name
redacted] to a closer distance we would greatly appreciate it.[193]

An attorney spoke about how difficult it is for detained
mothers to be separated from their children after transfer:

It seems to me that there are so many unique issues with
[detained] women. It’s a higher psychological toll to be separated from
their children. It gets to the point where you cannot even communicate with
your client at all [because they are so distraught]. With men, there’s
definitely an impact, but with women it takes over their entire being. Anybody
who works with women detainees who have been transferred away from children
will tell you it’s so much more emotionally taxing for them.[194]

Transfer
Devastates Mother Separated from Young Son

A clinical psychologist spoke to Human Rights Watch about
an African woman who had been abused and tortured in her country of origin
and who had also undergone female genital mutilation. After this abuse,
according to the psychologist, she had developed severe post-traumatic stress
disorder (PTSD). However, after immigrating to the US, “she turned her
life around:” she had married and had a young son, and trained and
ultimately became a nurse.[195]

While working in the hospital, however, she assaulted
someone. The psychologist’s assessment was that an incident in the
hospital triggered her PTSD just before the assault. While she was able to
serve her criminal sentence in California in a prison near to her husband and
young child who visited her regularly, she was subsequently detained by ICE
and transferred.

As the psychologist explained:

Once ICE took her into custody she was immediately sent
to detention in Florence, Arizona. There was no possible way for her husband
and her young son to get to see her there. That was where I tried to work
with her. It was terribly heart-wrenching for her to be detained so far away
from her small child. She spent almost a year in detention fighting her
deportation. During that time, she never saw her son, who lost a year of life
with his mom from age four to age five. It was devastating for the entire
family.[196]

Several attorneys reported to Human Rights Watch that the
transfers of detainees away from family members wore down the detainees’
willingness to spend the time in detention necessary to pursue appeals of their
cases. Eventually, many signed voluntary departure agreements.[197] As
one attorney put it:

The primary impact of transfers is on the individual and
their families. It’s just so devastating financially and emotionally. So
many family members have told me that it’s like their [detained] relative
is dead. As the length of time in detention goes on, everyone loses hope. There
is an attrition rate in visits, and family just cannot keep up with the delays
in the cases. They manage to get there for the first go-around, when they were
supposed to be there, but then the government appeals, or there is a
continuance, and it’s tough to keep coming back. What happens to the kids
is the real tragedy.[198]

The sister of a detainee who was transferred from New York
to New Mexico told Human Rights Watch:

Ever since they sent him there, it’s been a
nightmare. My mother has blood pressure problems, and her pressure goes up and
down like crazy now, because of worrying about him and stuff. [His wife] has
been terrified. She cries every night. And his baby asks for him, asks for
“Papa.” He kisses his photo. He starts crying as soon as he hears
his father’s voice on the phone even though he is only one.... Last week
[my brother] called to say he can’t do it anymore. He’s going to
sign the paper agreeing to his deportation.[199]

Another attorney in Arizona said:

Number one thing is that their families can’t visit
them.... It plays a big part in the morale of the detainee. It has to play with
your mind. One of the thoughts that goes through everybody’s head is
“why don’t I just leave and take the deportation?” The
telephone is the other part of it ... their phone calls are subject to
monitoring, and the calls cost so much from detention. It costs too much,
especially when it is the breadwinner who is in detention.[200]

An attorney representing an individual from India, who
explained that his client had been tortured prior to seeking asylum from
persecution in the United States, spoke with Human Rights Watch just days after
his client had been transferred away from his family in northern California to
detention in Hawaii. The attorney explained:

What we see is that our client is emotionally devastated
[by the separation from his family]. He is showing his willingness to drop his
case. This is someone who doesn’t want to be sent to a place where he fears
persecution and he wants to drop his case in the Ninth Circuit because he
cannot bear the separation from his wife and children.[201]

This same detainee’s wife wrote to ICE:

I was born in 1971, and was married to [name redacted] on November
21, 2001. We have two US-born children. My husband has been in the custody of
the ICE. I have recently learned that he has been transferred [to Hawaii from
northern California]. This will cause unusual and undue hardship to me and my
family. I am very attached to my husband and so are our children. We want to be
able to see him as often as possible. Especially our six-year-old daughter has
been visiting him on almost a weekly basis. We request that he would be
transferred to a facility nearby....[202]

In our research, we did not come across a single case in
which ICE had granted such a request.[203]

XII.
Unaccompanied Minors

Transfers are uniquely problematic in the case of
non-citizens who are unaccompanied minors. An unaccompanied minor is someone
below the age of 18 who enters the United States without parents or other legal
custodians able to provide him or her with protection and assistance. Since
these children are undocumented, they are subject to deportation and most are
detained while they await the outcome of their deportation or asylum hearings.
The United States policy of detaining unaccompanied minors, particularly those
who are seeking asylum, contravenes established international standards on the
care and treatment of children.[204]
For decades Human Rights Watch has focused on the rights abuses that occur when
children are detained far away from their communities of origin. As early as
1998 we recommended that the INS work to house non-citizen children near to
their communities of origin, legal services, and support.[205]

Under current operational guidelines, when ICE first
apprehends an unaccompanied minor, ICE is required to send him or her as soon
as possible to a specialist facility run by the Office of Refugee Resettlement
that is the least restrictive, smallest, and most child-friendly facility
available. Therefore, as soon as ICE becomes aware that it has an unaccompanied
minor in its custody, the agency “calls ORR and they tell them where the
nearest open bed is, and that’s where the child goes.”[206]

The Office of Refugee Resettlement maintains 43 facilities
for the detention of unaccompanied minor children throughout the United States.
The limited number of facilities combined with the increasing number of
unaccompanied minors placed in detention (approximately 10,350 in 2007)[207] has
exacerbated problems caused by transfers. This is because unaccompanied
children are often placed in facilities that are even further away from their
support networks than are adult detainees, since there are so few facilities
available to accommodate children.[208]

The effects of transfer upon children are really stories of
unintended consequences, since the laudable goal of placing children in the
least restrictive and most child-friendly facilities has motivated the policy
of housing children in facilities run by ORR. Nevertheless, these placements
often separate children from pro bono attorneys willing to help them or
extended family members who might be able to provide some support. They may
also alter the law that will be applied in their deportation cases. According
to one expert specializing in this area, “What might be best for the
child may not be [the] best thing for their case. We are faced with terrible
choices. Transfer of children to ORR facilities often just puts people in untenable
situations.”[209]

Zhen Ching Shui, a Chinese citizen, was put on a boat by his
parents while he was a teenager because he had been threatened with
sterilization by China’s birth planning department.[210]
Zhen was 17 years old when he reached where his uncle lived in Guam. Since he
did not possess a valid entry document, he was placed in detention in a
facility for unaccompanied minors in Phoenix, Arizona. Although Zhen’s
uncle retained an attorney for him in Guam, the lawyer experienced difficulties
in representing his client because of the distance between them. Zhen filed a
motion to change venue to Guam, but it was denied. As a reviewing court
explained,

Even had the immigration judge granted Zhen’s motion
to change venue for the removal proceedings to Guam, Zhen would have remained
in physical custody in Arizona.... The original reason for Zhen’s
transfer to Phoenix was the lack of a juvenile detention facility on Guam.[211]

An expert working with children in ORR facilities explained
to Human Rights Watch how unaccompanied children can sometimes be transferred
over and over again throughout the system, especially if they begin exhibiting
behavioral problems that ironically may be exacerbated by detention itself.
According to this expert, the more restrictive facilities are often the ones
that break down a child’s willingness to fight against his or her
deportation:

Many of these children are highly traumatized even before
they get here. Lots of nightmares, lots of behavioral problems—that
redoubles on itself because when they have behavioral problems they get
transferred to increasingly secure systems, [such as a secure facility in
Indiana].... For the kids in Indiana, the facility was very restrictive and the
court was a five-hour bus ride each way. Oh my god, some of the kids detained
there would say “just send me home if you’re going to keep me like
this.” The kids just give up. They just give up. These are kids who are
coming from places where they are highly likely to be harmed if they go back,
but they give up anyway.[212]

In another case documented by Human Rights Watch, a
17-year-old boy, Ramon M., was eligible for special immigrant juvenile status
(SIJS), a classification that allows certain unaccompanied minors to remain in
the United States.[213]
Ramon had counsel representing him and an ability to prove dependency for
foster care purposes in Arizona. However, he was transferred 1,660 miles away
to the Southwest Indiana Regional Youth Village, an ORR facility in Vincennes,
Indiana. ICE filed a motion for change of venue, which was opposed by
Ramon’s counsel but granted by the immigration judge. Once venue was
changed, it was impossible for Ramon to prove dependency under the state laws
of Indiana without accruing six months of residency in Indiana. This time
requirement caused Ramon to “age out” of eligibility for special
immigrant juvenile status, which meant he lost the ability to remain lawfully
in the United States.[214]

Corroborating this example, the same expert working in ORR
facilities told Human Rights Watch that children’s legal cases often are
negatively affected by transfers between distant juvenile detention facilities:

Sometimes the transfers can affect the client’s
ability to qualify for SIJS. Sometimes the court isn’t informed that the
child has been moved and they show up as a failure to appear. By the time that
someone can concentrate on the case, it’s too late for them to apply for
SIJS [because they have aged out], or to ameliorate [sic] the failure to appear
ruling. It’s really so sad. A lot of times whether a child’s case
was developed enough to see if they really had a chance to stay in the United
States depends on whether the [pro bono attorneys] near to him or her were
really overwhelmed. You might have a kid where the lawyers can do something for
them, but then they get moved to a place where the lawyers are totally
overwhelmed. They don’t stay long enough in one place to get the help
they need.[215]

Acknowledgments

This report was researched and written by Alison Parker,
deputy director of the US program of Human Rights Watch. The report was edited
by David Fathi, director of the US program at Human Rights Watch; Bill Frelick,
refugee policy director; Lois Whitman, director of the children’s rights
division; Clive Baldwin, senior legal advisor; and Joe Saunders, deputy
program director. Layout and production were coordinated by Grace Choi,
publications director, Fitzroy Hepkins, mail manager, and Abigail Marshak, US
program associate.

Human Rights Watch would like to thank Betsy Bennion and
Daniel Gatti, legal interns with the US program of Human Rights Watch, for
their contributions to this report. The data analysis for this report was
completed by the Transactional Records Access Clearinghouse at Syracuse
University, and we are very grateful to Sue Long and David Burnham for their extraordinary
expertise, professionalism, and hard work. It was a true pleasure to
collaborate with TRAC on this project. We would also like to thank ICE for
sending us the data we requested. Finally, we are grateful to Stephanie
Goldsborough, Andrea Black, and Judy Rabinovitz for providing expert review of
earlier drafts of this report.

This report would not have been possible without the
collaboration of Probar in Texas and the Florence Project in Arizona, and their
dedicated teams of pro bono attorneys, as well as scores of immigration
attorneys throughout the United States who helped us with our research. Of
course, we are most indebted to the detainees and their families who
courageously shared their stories with us.

Appendix

[2]
Throughout this report, the words “non-citizen” and
“immigrant” are used interchangeably for any person who is not a
citizen or national of the United States. These are the same persons defined in
immigration law as “aliens,” and they include persons lawfully
present in the United States as well as those unlawfully present. Immigration
and Nationality Act, Section 101(a)(3); 8 U.S.C. Section 1101(a)(3).

[4]
US Constitution, Sixth Amendment (“in all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law.”).

[6]
Letter from Catrina M. Pavlik-Keenan, FOIA officer, US Immigration and Customs
Enforcement, US Department of Homeland Security, to Human Rights Watch,
September 29, 2008 (letter on file with Human Rights Watch and reproduced in
the Appendix to this report).

[7]
Dr. Dora Schriro, special advisor on ICE Detention and Removal,
“Immigration Detention Overview and Recommendations,” Department of
Homeland Security, Immigration and Customs Enforcement, October 6, 2009,
http://www.ice.gov/doclib/091005_ice_detention_report-final.pdf (accessed
November 2, 2009), p.2 (hereinafter “Schriro Detention Report”).
This figure refers to the total number of admissions to detention over the
course of the year. At any one time, the number of persons detained is about
one-tenth this figure.

[8]Throughout this report we use the terms
“deportation” and “removal” interchangeably to refer to
a government’s removal of a non-citizen from its territory. We note that
the terms had different meanings under earlier versions of US immigration law,
and that now all such governmental actions are referred to in US law as
“removals.” Nevertheless, for simplicity we use the more commonly
understood term “deportation” wherever possible.

[12]
Letter from Stewart Baker, Assistant Secretary for Policy, Department of
Homeland Security, to Felice Gaer, United States Commission on International
Religious Freedom, November 28, 2008 (letter on file with Human Rights Watch)
(noting that only 50 percent of asylum seekers who were found to have a
credible fear of persecution and who applied for parole were actually granted
parole and released from detention from November 6, 2007, to June 30, 2008.).

[28]Avramenkov v. INS, 99 F. Supp. 2d 210, 213 (D. Conn. 2000)
(“Congress has squarely placed the responsibility of determining where
aliens are to be detained within the sound discretion of the Attorney
General”); Van Dinh v. Reno, 197 F.3d 427, 433 (10th Cir. 1999)
(“a district court has no jurisdiction to restrain the Attorney
General’s power to transfer aliens to appropriate facilities by granting
injunctive relief”); Sasso v. Milhollan, 735 F. Supp. 1045, 1046
(S.D. Fla. 1990) (holding that the attorney general has discretion over
location of detention); Rios-Berrios v. INS, 776 F.2d 859, 863 (9th Cir.
1985) (“We wish to make ourselves clear. We are not saying that the
petitioner should not have been transported to Florida. That is within the
province of the Attorney General to decide.”).

[30]Earle v. Copes, 2005 WL 2999149, *1 (November 8, 2005, W.D. La.)
(“the transfer of a detained alien from one state to another does not
raise any constitutional concerns even if representation of the alien may be
less convenient”); Gandarillas-Zambrana v. Board of Immigration
Appeals, 44 F.3d 1251, 1256 (4th Cir. 1995) (“there is
nothing inherently irregular … about the [non-citizen’s] transfer
from Virginia to Louisiana”); Sasso v. Milhollan, 735 F.Supp.
1045, 1047 n.6 (S.D. Fla. 1990) (attorney general had not abused his discretion
by ordering hearing in Texas, despite claim that non-citizens’ witnesses
were located in Florida and would not be able to afford travel to Texas to
appear at hearing there); Committee of Central American Refugees v. INS,
682 F. Supp. 1055, 1060 (N.D. Cal. 1988) (regular transfers from San Francisco
district to El Centro, California, or Florence, Arizona, did not rise to the
level of due process violations).

[36]
US Constitution, Sixth Amendment (“In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law.”).

[45]
ICE is not required to track the reason for transfer, nor is it required to
track a detainee’s eligibility for a bond hearing. US Immigration and
Customs Enforcement, “Operations Manual ICE Performance Based National
Detention Standards,” part 7, chapter 41, http://www.ice.gov/doclib/PBNDS/pdf/transfer_of_detainees.pdf,
pp. 5-11, 15.

[51]
The standards state in full the following reasons for transfer: “Medical
– The Division of Immigration Health Services (DIHS) has the authority to
recommend that a detainee in need of specialized or long-term medical care be
transferred to a facility that can meet those needs. The DIHS Medical Director
or designee must approve transfers for medical reasons in advance. Medical
transfers will be coordinated through the local ICE office of jurisdiction
using established procedures. Change of Venue – A change of venue by the
Executive Office of Immigration Review from one jurisdiction to another.
Recreation – When the required recreation is not available, a detainee
will have the option of transferring to a facility that offers the required
recreation. Security – Security transfers are conducted, for example,
when the detainee becomes a threat to the security of the facility, e.g. the
detainee is violent or has caused a major disturbance or is threatening to
cause one, or a situation exists that is threatening to staff or other
detainees and cannot be controlled through the use of segregation housing. In
these cases, detainees may be transferred to a higher-level facility. Other
Needs of ICE – Detainees may be transferred to other facilities for
various reasons, such as to eliminate overcrowding or to meet special detainee
needs, etc.” US Immigration and Customs Enforcement, Detention Operations
Manual, “Detainee Transfer,” June 16, 2004, http://www.ice.gov/doclib/pi/dro/opsmanual/DetTransStdfinal.pdf
(accessed November 4, 2009), pp. 2-3.

[52]
“The detainee shall not be notified of the transfer until immediately
prior to leaving the facility. At that time, the detainee shall be notified
that he/she is being moved to a new facility within the United States, and not
being deported…. Following transfer notification, the detainee shall
normally not be permitted to make or receive any telephone calls or have
contact with any detainee in the general population until the detainee reaches
the detention facility.” Ibid., p. 2.

[53]
“When counsel represents a detainee, and a G-28 has been filed, ICE shall
notify the detainee’s representative of record that the detainee is being
transferred from one detention location to another…. For security
purposes, the attorney shall not be notified of the transfer until the detainee
is en route to the new detention location.” Ibid., p. 2.

[54]
Human Rights Watch meeting with various ICE officials, May 2008; letters to
Assistant Secretary Julie Myers, Immigration and Customs Enforcement, June 24,
2008, and October 16, 2008 (letters on file with Human Rights Watch); Human
Rights Watch meeting with NGO colleagues and various ICE officials, September
2008. We note that other colleague organizations also raised similar concerns.
Letter to Assistant Secretary Julie Myers from American Civil Liberties Union,
comments on the draft ICE/DRO Performance-Based Detention Standards, February
22, 2008.

[56]
The additional factors to be taken into account are, in full: “In
addition, a specific detainee may be transferred to meet the specialized needs
of the detainee. In making the determination as to whether to transfer a
detainee, ICE/DRO will take into account: Security. A detainee may be
transferred to a higher-level facility because of circumstances that cannot
adequately be controlled through the use of segregation housing. Such security
reasons might include, for example: When the detainee becomes a threat to the
security of the facility; When the detainee is violent or has caused a major
disturbance or is threatening to cause one; or When a detainee’s behavior
or other circumstances present a threat to the safety of staff or other
detainees. Legal Representation. ICE/DRO will consider whether the detainee is
represented by legal counsel. In such cases, ICE/DRO shall consider
alternatives to transfer, especially when the detainee is represented by local,
legal counsel and where immigration court proceedings are ongoing. Medical. The
Division of Immigration Health Services (DIHS) may recommend that a detainee in
need of specialized or long-term medical care be transferred to a facility that
can better meet those needs. The DIHS Medical Director or designee must approve
transfers for medical reasons in advance. Medical transfers shall be
coordinated through the local ICE/DRO office of jurisdiction using established
procedures. Change of Venue. A detainee may be transferred from one
jurisdiction to another to accommodate a change in venue by the Executive
Office for Immigration Review (EOIR).” Ibid.

[59]
“The detainee shall not be informed of the transfer until immediately
prior to leaving the facility, at which time he or she shall be notified that
he or she is being moved to a new facility within the United States and not
being removed…. Following notification, the detainee shall normally not
be permitted to make or receive any telephone calls or have contact with any
detainee in the general population until the detainee reaches the detention
facility.” Ibid., p. 3.

[60]
Ibid. (emphasis added).The full standard states: “When a detainee is
represented by legal counsel, and a form G-28 has been properly executed and
filed…. The attorney shall be notified of the transfer once the detainee
has arrived at the new detention location. Generally, notification will be made
as soon as practicable, but no later than 24 hours after the transfer. When
there are special security concerns, the Deportation Officer may delay the
notification, but only for the period of time justified by those
concerns.”

[61]
In fact, even if counsel has enough time to protest a client’s transfer,
many courts have interpreted the immigration laws to strip the courts of power
to review any decision to transfer a detainee. Van Dinh v. Reno, 197 F.
3d 427, 434 (10th Cir. 1999). Courts are particularly unable to
review transfer decisions if these occur before the NTA is filed. US law grants
jurisdiction to federal courts over removal proceedings, and removal
proceedings do not commence until the NTA is filed, so any actions prior to the
filing of the NTA (such as transfer or the timing of when to file the NTA) are
generally seen as unreviewable. Jimenez-Angeles v. Ashcroft, 291 F.3d
594, 599 (9th Cir. 2002) (“We construe § 1252(g), which
removes our jurisdiction over ‘decision[s] ... to commence
proceedings’ to include not only a decision in an individual case whether
to commence, but also when to commence, a proceeding”); Richards-Diaz
v. Fasano, 233 F.3d 1160, 1165 (9th Cir. 2000) (“We are in no
position to review the timing of the Attorney General’s decision to
‘commence proceedings.’”).

[63]
See Appendix for Human Rights Watch’s original request to ICE and its
response.

[64]
The Fifth Circuit’s interpretations of immigration law are discussed in
more detail in Chapter X. There we point out, for example, that the circuit has
ruled that two or more misdemeanor convictions qualify as aggravated felonies,
and therefore bar non-citizens from applying for cancellation of removal (see
note 165 and accompanying text). The circuit also has one of the lowest rates
of remand for asylum claims, a subject that is also discussed in Chapter X.

[66]
We note that ICE announced in August 2009 that it will no longer house detained
immigrant families at the Hutto facility, which will presumably reduce the
number of juvenile detainees transferred there. Annabelle Garay,
“Families Slowly Leaving Texas Facility,” Associated Press,
September 9, 2009, http://www.ajc.com/news/nation-world/families-slowly-leaving-texas-134942.html
(accessed November 4, 2009).

[67]
See, for example, “ACLU Sues U.S. Immigration Officials and For-Profit
Corrections Corporation Over Dangerous and Inhumane Housing of Detainees,”
ACLU Press Release, January 24, 2007, http://www.aclu.org/prison/conditions/28127prs20070124.html
(accessed November 4, 2009) (describing lawsuit brought by the ACLU for failure
to provide adequate medical care in immigration detention) ; “ACLU Sues
Over Lack of Medical Treatment at San Diego Detention Facility,” ACLU
Press Release, June 13, 2007, http://aclu.org/immigrants/detention/30095res20070613.html
(accessed November 4, 2009) (same); Dana Priest and Amy Goldstein,
“Careless Detention: System of Neglect,” The Washington Post,
May 11, 2008, http://www.washingtonpost.com/wp-srv/nation/specials/immigration/cwc_d1p1.html
(accessed November 4, 2009); “In Custody Deaths,” The New York
Times, http://topics.nytimes.com/top/reference/timestopics/subjects/i/immigration_detention_us/incustody_deaths/index.html
(accessed November 4, 2009) (collecting articles published by the Times
about immigrant detainee deaths and failure to provide medical care from 2005
to 2009); US House of Representatives, Subcommittee on Immigration,
Citizenship, Refugees, Border Security, and International Law, “Hearing
on Problems with Immigration Detainee Medical Care,” June 4, 2008
http://judiciary.house.gov/hearings/hear_060408.html (accessed on November 4,
2009).

[68]
National Commission on Law Observance and Enforcement (the Wickersham
Commission), “Report on the Enforcement of the Deportation Laws in the
United States,” 1931, p. 109.

[71]
Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Philip G. Schrag, “Refugee
Roulette: Disparities in Asylum Adjudication,” Stanford Law Review,
vol. 60, November 2007, p. 340. See also, Human Rights First, “In
Liberty’s Shadow: U.S. Detention of Asylum Seekers in the Era of Homeland
Security,” 2004, http://www.humanrightsfirst.org/about_us/events/Chasing_Freedom/asylum_report.htm
(accessed November 4, 2009), p. 39 (citing Georgetown University Institute for
the Study of International Migration analysis of US government statistics
showing that “asylum seekers are up to six times more likely to be
granted asylum when they are represented.”).

[87]
Although the location of this transferred detainee was not revealed in the
OIG’s report (report referenced in footnote 32), Human Rights Watch filed
a FOIA request to learn his or her pre-transfer location. Letter to Human
Rights Watch in response to FOIA Request No. 2009-073 from Katherine R. Gallo,
assistant counsel to the Inspector General, US Department of Homeland Security,
April 28, 2009 (letter on file with Human Rights Watch).

[95]
Cormac T. Connor, “Note: Human Rights Violations in the Information
Age,” Georgetown Immigration Law Journal, vol. 16, Fall 2001, p.
217 (“Body language is of extreme importance to establishing the
credibility of a witness…. Numerous studies have shown the overwhelming
weight the court places on body language … in American culture, failure
to make eye contact triggers feelings of distrust in an observer. Thus, one of
the main criticisms of the use of videoconference techniques in the courtroom
has been the impossibility of maintaining eye contact…. Furthermore,
studies on effective public speakers have found that 90% of persuasive
effectiveness comes from the speaker’s physical attractiveness, warmth,
sympathy, movements, gestures, clothing, and voice.”).

[107]Sasso v. Milhollan, 735 F. Supp. 1045, 1049 (S.D. Fla. 1990) (rejecting
detainee’s claim that attorney “will not be able to travel to El
Paso, thereby abrogating his right to counsel.”); Dai v. Caplinger,
1995 WL 241861, *2 (E.D. La.1995) (even though there is a “great
distance” between Louisiana and California, “[a]s long as
petitioners are given reasonable access to the telephones,… they have not
been denied their right of access to counsel.”).

[117]
Testimony of Christina Fiflis on behalf of the American Bar Association,
Subcommittee on Border, Maritime and Global Counterterrorism, Committee on
Homeland Security, US House of Representatives, on “Crossing the Border:
Immigrants in Detention and Victims of Trafficking,” March 15, 2007, http://www.abanet.org/publicserv/immigration/fiflis_testimony_before_subcommittee.pdf
(accessed November 4, 2009).

[140]
Ibid. At least one court has found that an immigration judge abused his
discretion when concluding that he simply “had no power to consider the
issue” when a change of venue was requested by a detainee. Lovell v.
INS, 52 F.3d 458, 460 (2d Cir. 1995). Nevertheless, using the standard
applied by all courts reviewing claims that immigration judges abused their
discretion, even this court found that there was no need to reverse the
immigration judge’s ruling since the detainee failed to “show
prejudice resulting from [the judge’s] failure to consider his motion for
a change of venue.” Lovell at 461.

[157]Cheuk Fung S-Yong v. Holder, 2009 WL 2591671, *5 (9th Cir.
2009) (“There are no documents of conviction in the administrative
record-indeed, there are no documents at all in the record, other than
the government’s two-page notice to appear-and it is impossible to tell
from the hearing transcript the exact nature of the document the immigration
judge relied upon.”) (emphasis in original); Ba v. Gonzales, 228
Fed. Appx. 7, 10 (2d Cir. 2007) (“the IJ failed to offer a reasoned
explanation for deferring to an unauthenticated print-out of a RAP sheet rather
than the identity documents submitted by Ba, especially in light of the fact
that the name and birth date discrepancies were minor.”); Hernandez-Guadarrama
v. Ashcroft, 394 F.3d 674, 683 (9th Cir. 2005) ( “In this
case, the government’s proof (even if it were admissible) is not
sufficient to carry its ‘very demanding’ burden. A single affidavit
from a self-interested witness not subject to cross-examination simply does not
rise to the level of clear, unequivocal, and convincing evidence required to
prove deportability.”).

[164]
See Rashid v. Mukasey, 531 F.3d 438, 448 (6th Cir. 2008)
(finding that the second misdemeanor offense cannot be treated as an aggravated
felony when the first conviction was not at issue in the prosecution of the
second offense).

[165]
See United States v. Cepeda-Rios, 530 F.3d 333, 335 (5th Cir.
2008) (finding, after the U.S. Supreme Court decision in Lopez v. Gonzales,
549 U.S. 47 (2006), that two or more state misdemeanor drug possession
convictions qualify as aggravated felonies, and therefore bar non-citizens from
applying for cancellation of removal under INA 240A, 8 U.S.C. 1229b).

[174]Renteria-Gonzalez v. INS, 322 F.3d 804, 814 (5th Cir. 2002)
(finding that a vacated conviction, federal or state, remains valid for purposes
of the immigration laws). Other Circuits disagree—see, for example, Cruz-Garza
v. Ashcroft, 396 F.3d 1125, 1129 (10th Cir. 2005) (noting that convictions which
have been vacated on the merits cannot serve as basis for alien’s
removal); Nath v. Gonzales, 467 F.3d 1185, 1189 (9th Cir. 2006) (stating
that aggravated felony conviction that had been vacated could not serve as
basis for removal); Sandoval v. I.N.S., 240 F.3d 577, 583 (7th Cir. 2001)
(non-citizen convicted in state court of possession of more than 30 grams of
marijuana was not subject to deportation due to conviction, where conviction
was vacated on post-conviction motion and sentence modified consistently with
first time conviction for possession of less than 30 grams.).

[175]
The 1967 Protocol Relating to the Status of Refugees, to which the United
States is a party, binds parties to abide by the provisions of the Refugee
Convention, including the requirement that no state “shall expel or
return (‘refouler’) a refugee in any manner whatsoever to the
frontiers of territories where his life or freedom would be threatened on
account of his race, religion, nationality, membership of a particular social
group or political opinion.” Convention relating to the Status of
Refugees (Refugee Convention), 189 U.N.T.S. 150, entered into force April 22,
1954, art. 33.

[180]Abebe v. Ashcroft, 379 F.3d 755, 759 (9th Cir. 2004) (first
appeared to follow Seventh Circuit in Olowo, holding that risk that
daughter would face genital mutilation did not establish a well-founded fear of
persecution, until a majority of the court voted to rehear the case en banc
and remanded case to Board of Immigration Appeals to reconsider the decision).

[181]Mwembie v. Gonzales, 443 F.3d 405, 415 (5th Cir. 2006) (finding that the
imprisonment and repeated rapes of Ms. Mwembie in the Democratic Republic of
the Congo (DRC) were suffered not because of her incarceration due to her
political opinion or membership in a particular social group, but rather
because she was incarcerated as a part of a
legitimate investigation into the assassination of the DRC’s
head of state).

[203]
Letter from Immigration and Naturalization Service to family member, date
redacted (“You have requested INS transfer your cousin to a facility
closer to his family. Unfortunately, due to budgetary restrictions and lack of
detention space, INS is unable to grant your request.”) (letter on file
with Human Rights Watch); letter from US Department of Justice, Executive
Office for Immigration Review to detainee, August 21, 2006 (“Sir, the
Dallas Immigration Court does not have any control that has to do with
transfers.”) (letter on file with Human Rights Watch); letter from
Immigration and Naturalization Service to detainee, date redacted (“You
have requested that the Immigration and Naturalization Service (INS) exercise
its discretion and allow you to transfer to another INS facility … The
INS has no plans to transfer you to a different facility at this time.”)
(letter on file with Human Rights Watch); letter from Immigration and
Naturalization Service [sic: INS ceased to exist in 2003, yet this letter
appears on INS letterhead and is dated 2008] to detainee, September 29, 2008
(“INS cannot transfer you to a different facility”) (letter on file
with Human Rights Watch).

[204]
United Nations High Commissioner for Refugees (UNHCR), “Refugee Children:
Guidelines on Protection and Care,” Geneva: 1994, p. 37.
(“Detention [of child asylum seekers] must only be used as a last resort
and must always have a proper justification. For example, when identity
documents have been destroyed or forged, a State might choose to detain an
asylum seeker while identity is being established, but detention must be for
the shortest period of time possible (CRC art. 37(b))”).

[205]
Human Rights Watch, “Detained and Deprived of Rights: Children in the
Custody of the US Immigration and Naturalization Service,” vol. 10, issue
4, December 1998, http://www.hrw.org/en/reports/1998/12/01/detained-and-deprived-rights,
pp. 4-5 (recommending to the INS that it develop alternatives to detention that
“include local social service agencies and foster families in the area in
which the child was originally detained” and that “shelter-care
facilities should be in major ports of entry to the Unites States, where
culturally appropriate community resources and legal services are available.
When possible, children should be placed in shelter-care facilities in the area
in which they were originally apprehended or in which they have friends or
relatives.”)

[206]
Human Rights Watch interview with expert working with unaccompanied children
detained by ICE and ORR, January 29, 2009 (anonymity requested for job security
reasons).

[207]
Administration for Children and Families, US Department of Health and Human
Services, fiscal year 2007 statistics.

[208]
As of fiscal year 2007, there were 43 facilities across the United States
capable of accommodating unaccompanied children. These facilities were located
in Arizona (4), California (8), Oregon (1), Washington (3), Illinois (2),
Indiana (2), Texas (17), New York (1), Virginia (1), and Florida (3).
Administration for Children and Families, US Department of Health and Human
Services, fiscal year 2007 statistics.

[209]
Human Rights Watch interview with expert working with unaccompanied children
detained by ICE and ORR, January 29, 2009 (anonymity requested for job security
reasons).

[210]Zhen v. INS, 11 Fed. Appx. 801, 802 (9th Cir. 2001)
(unpublished decision) (stating that “As a teenager, Zhen had an
altercation with agents of China’s Birth Planning Department, who then
told his parents that Zhen would be sterilized at age twenty. Zhen’s
parents, fearful for his safety, put him on a boat to Guam, where Zhen’s
uncle resided.”).